On December 16, 2015, prior to a Board meeting, a process server in the Wahlstrom Litigation sought to serve a summons and complaint on Defendant Board Members and approached Plaintiff. Plaintiff contacted Defendant Pearson. Defendant Pearson reacted by telling Plaintiff that the board wasnt going to be happy about this and if the lawsuit went the wrong way, there was no way he could protect me. And if I was stupid, there was no way he could protect me. Id. at 1993. The next day, Defendant Pearson again told her that the Board was not happy. He said he could not protect her if she was stupid, and that she should be careful and stop talking to Wahlstrom. He claimed the Board knew she was involved in helping Wahlstrom with the lawsuit and the Board wanted her gone. Id. at 1995, 2010. On January 12, 2016, Defendant Pearson said to Plaintiff, "if the lawsuit go[es] the wrong way, theres nowhere you can hide. Id. at 2010.
On January 20, 2016, a closed session of the Board met to discuss the Districts deficit elimination plan, which, as it was revealed at the meeting, involved eliminating one of the assistant superintendents. At the meeting, Defendant Pearson told Plaintiff not to write down anything, put her pad of paper on the floor, and sit with her hands in her lap before he stated to the Board, if you want me, Renees gone. Id. at 2000. According to Board member Jeanine Walker, it was the first time anyone had mentioned terminating Plaintiff. Dkt. No. 60-9, PgID 2254.
On January 25, 2016, Defendant Pearson discussed with Plaintiff his plan to have her be the principal of the high school if she was no longer an Assistant Superintendent. Dkt. No. 60-3, PgID 1995-96. Defendant Pearson told her that the Board did not like that plan, as the Board had issues with her and she knew why but that he could not tell her why because she would use it in a lawsuit against him and the board. Id. at 2011; Dkt. No. 60-41, PgID 2509. Defendant Pearson said that he should have protected [Plaintiff] better before ultimately stating that its Deb. They see you as complicit in the thing with Deb. Dkt. No. 60-3, PgID 2011.
On January 25, 2016, Defendant Pearson also told Plaintiff that the Board had agreed to terminate her employment, effective at the end of the school year, as he had recommended. Dkt. No. 60-3, PgID 2012. On April 25, 2016, the Board formally laid Plaintiff off from her Assistant Superintendent position, a position the District advised her was being eliminated, effective June 30, 2016. Dkt. No. 60-42, PgID 2512.
III. LEGAL STANDARD
Rule 56(a) of the Rules of Civil Procedures provides that the court shall grant summary judgment 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). The presence of factual disputes will preclude granting of summary judgment only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id. Although the Court must view the motion in the light most favorable to the nonmoving party, where the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.
Matsushita Electric Industrial Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Celotex Corp. v. Catrett , 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment must be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that partys case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving partys case necessarily renders all other facts immaterial. Celotex Corp. , 477 U.S. at 322-23, 106 S.Ct. 2548. A court must look to the substantive law to identify which facts are material. Anderson , 477 U.S. at 248, 106 S.Ct. 2505.
IV. ANALYSIS
A. Applicable Law
1. Municipal Liability
A municipal defendant can only be subject to direct liability if it causes the constitutional harm because it implements or executes a policy statement, ordinance, regulation or decision officially adopted and promulgated by that bodys officers. Monell v. New York City Dept of Social Servs. , 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). [I]t is when execution of a governments policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under Section 1983. Id. at 694, 98 S.Ct. 2018. A plaintiff cannot allege a viable claim based solely on vicarious liability or respondeat superior . Id. at 691, 98 S.Ct. 2018. The municipalitys policy (or absence of one) must be a moving force in the deprivation of the plaintiffs constitutional rights and such policy must have arisen from deliberate indifference to the rights of its citizens. Doe v. Claiborne Cty., Tenn. , 103 F.3d 495, 508 (6th Cir. 1996).
A § 1983 claim against a municipal employee or agent for acts undertaken in an official capacity is tantamount to a claim against the municipality that the employee or agent represents. Kentucky v. Graham , 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). A municipal liability claim against a school board must be examined by applying a two-pronged inquiry: (1) whether the plaintiff has asserted the deprivation of a constitutional right at all; and (2) whether the school board is responsible for that violation. Doe v. Claiborne County , 103 F.3d at 505-06.
Municipal liability may attach under Section1983 where a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. Pembaur v. Cincinnati , 475 U.S. 469, 483-84, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). The act of the municipality may be one of sanctioning the offensive conduct. Id. at 480, 106 S.Ct. 1292. To hold a supervisory official liable under § 1983, it must be shown that he at least implicitly authorized, approved or knowingly acquiesced in the unconstitutional conduct of the offending subordinate. Payton v. City of Detroit , 211 Mich.App. 375, 536 N.W.2d 233, 245 (1995) (quoting Bellamy v. Bradley , 729 F.2d 416, 421 (6th Cir. 1984) ). A single act by a decisionmaker possess[ing] final authority to establish municipal policy with respect to the action ordered may suffice in demonstrating that policy or custom. Cady v. Arenac Cty. , 574 F.3d 334, 345 (6th Cir. 2009) (quoting Pembaur , 475 U.S. at 481, 106 S.Ct. 1292 ).
2. Qualified Immunity
Qualified immunity is an affirmative defense against a Section 1983 claim. Noble v. Schmitt , 87 F.3d 157, 160 (6th Cir. 1996). The doctrine of qualified immunity shields governmental officials performing discretionary functions ... from civil damages liability as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated. Solomon v. Auburn Hills Police Dept , 389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v. Creighton , 483 U.S. 635, 638, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) ). See also Harlow v. Fitzgerald , 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (government officials performing discretionary functions are shielded from liability for civil damages to the extent that their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.).
[T]he test for qualified immunity has only two prongs-whether the defendant violated a constitutional right and whether the right at issue was clearly established. Brown v. Lewis , 779 F.3d 401, 417 (6th Cir. 2015) (citing Plumhoff v. Rickard , --- U.S. ----, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014), and Pearson v. Callahan , 555 U.S. 223, 232, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ). For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right. Creighton, 483 U.S. at 640, 107 S.Ct. 3034. This standard does not require the very action in question to have previously been held unlawful, only that its unlawfulness be apparent in light of pre-existing law. Id. (citing Mitchell v. Forsyth, 472 U.S. 511, 535 n.12, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) ).
Once a government official has raised the defense of qualified immunity, the plaintiff bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity. Cockrell v. City of Cincinnati , 468 Fed.Appx. 491, 494 (6th Cir. 2012) (citation omitted). A plaintiff must also establish that each individual defendant was personally involved in the specific constitutional violation. See Salehpour v. University of Tennessee , 159 F.3d 199, 206 (6th Cir. 1998) ; Bennett v. Schroeder , 99 Fed.Appx. 707, 712-13 (6th Cir. 2004) (unpublished) (It is well-settled that to state a cognizable Section 1983 claim, the plaintiff must allege some personal involvement by the each of the named defendants).
A school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of an individual, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to that individual. Wood v. Strickland , 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).
B. Section 1983 Claim
A viable claim under Section 1983 requires a plaintiff to identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law. Russo v. City of Cincinnati , 953 F.2d 1036, 1042 (6th Cir. 1992). Plaintiff has asserted that Defendants retaliated against her in violation of her rights to (a) freedom of expressive association, which is protected by the First Amendment, and (b) freedom of intimate association, a privacy interest derived from the Due Process Clause of the Fourteenth Amendment. See, e.g., Anderson v. City of LaVergne , 371 F.3d 879, 881 (6th Cir. 2004) (citing Roberts v. United States Jaycees , 468 U.S. 609, 617-18, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984).
With respect to expressive association, the Supreme Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment-speech, assembly, petition for the redress of grievances, and the exercise of religion. Roberts , 468 U.S. at 618, 104 S.Ct. 3244. Included as a right under the First Amendment is the right to testify in any federal court proceeding freely, fully, and truthfully without deter[rence], by force, intimidation, or threat. See 42 U.S.C. § 1985(2) ; United Broth. of Carpenters & Joiners of Am., Local 610, AFL-CIO v. Scott , 463 U.S. 825, 832, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983) (citing 42 U.S.C. § 1985 and stating that a violation of Section 1985 may be found where a governmental entity is involved in the interference of an individuals First Amendment right); Lindensmith v. Webb , 2016 WL 3679505, *2 (E.D. Mich. July 12, 2016) (citing Scott , 463 U.S. at 830, 103 S.Ct. 3352 ) (same). See also Lane v. Franks , --- U.S. ----, 134 S.Ct. 2369, 2378, 189 L.Ed.2d 312 (2014) (Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.).
Concerning intimate association, the Supreme Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. Id. at 617-18, 104 S.Ct. 3244. The Supreme Court has explained that the right to intimate association receives protection as a fundamental element of personal liberty. Id. at 618, 104 S.Ct. 3244. Personal friendship is protected as an intimate association. Akers v. McGinnis , 352 F.3d 1030, 1039-40 (6th Cir. 2003) (citing Corrigan v. City of Newaygo , 55 F.3d 1211, 1214-15 (6th Cir. 1995) ). Assuming an intimate association exists, the Courts next step is to determine whether the government entitys action constituted a direct and substantial interference with the plaintiffs intimate association. Anderson , 371 F.3d at 882 (citing Akers , 352 F.3d at 1040 ). If so, the government entitys action is subject to strict scrutiny review; if not, rational basis review applies. See id.
1. First Amendment Claim
A First Amendment retaliation claim essentially entails 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 plaintiffs protected conduct. Thaddeus-X v. Blatter , 175 F.3d 378, 394 (6th Cir. 1999) (en banc). See also Leary v. Daeschner , 228 F.3d 729, 737 (6th Cir. 2000). If the plaintiff establishes a prima facie case, the burden shifts to the defendant to demonstrate by a preponderance of the evidence that the same decision would have been reached absent the protected conduct. Once this shift has occurred, summary judgment is warranted if, in light of the evidence viewed in the light most favorable to the plaintiff, no reasonable juror could fail to return a verdict for the defendant. Benison v. Ross , 765 F.3d 649, 658 (6th Cir. 2014) (citing Thaddeus-X , 175 F.3d at 394 ).
The threshold question of whether the plaintiff engaged in a constitutionally protected activity has two components: (1) whether the plaintiff was speaking as a citizen; and (2) whether the topic was a matter of public concern. Garcetti v. Ceballos , 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ; Connick v. Myers , 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In Garcetti , the Supreme Court held that a public employee is not speaking as a citizen when he make[s] statements pursuant to [his] official duties. 547 U.S. at 421, 126 S.Ct. 1951. There, the plaintiff, a deputy district attorney, was fired for writing an internal memorandum recommending dismissal of a case on the basis of alleged government misconduct. The Supreme Court noted that there can be First Amendment protection for expressions made at work and on the subject of the defendants employment, but the controlling factor was that the plaintiffs expressions were made pursuant to his duties as a calendar deputy. Id. at 420-21, 126 S.Ct. 1951. After Garcetti , the Sixth Circuit held that a park rangers conversations with a personnel consultant hired by the department were ad hoc or de facto duties of her job and therefore her statements were made as an employee and not as a citizen. Weisbarth v. Geauga Park Dist. , 499 F.3d 538 (6th Cir. 2007).
In the Sixth Circuit, [a] matter of public concern usually involves a matter of political, social, or other concern to the community. Jackson v. City of Columbus , 194 F.3d 737, 746 (6th Cir. 1999). When a public employee speaks as an employee on matters of personal interest, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employees behavior. Connick , 461 U.S. at 147, 103 S.Ct. 1684 (internal citation omitted).
To establish that the at-issue constitutionally protected speech motivated the adverse action, a plaintiff must point to specific, nonconclusory allegations reasonably linking her speech to the employer discipline. Vereecke v. Huron Valley Sch. Dist. , 609 F.3d 392, 400 (6th Cir. 2010) (internal citation omitted). Mere speculation, innuendo and rumor are insufficient to substantiate a First Amendment retaliation claim. Buchko v. County of Monroe , 506 Fed. Appx. 400, 404-406 (6th Cir. 2012) (citing Vereecke , 609 F.3d at 399-400 ); Crawford-El v. Britton , 523 U.S. 574, 588, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) ([w]hen assessing motive in the context of a summary judgment motion, bare allegations of malice [do] not suffice to establish a constitutional claim.) (internal citations omitted).
A. Municipal Liability
Defendants assert that the Board, as an entity, and the District are the final policymakers in this case, as Defendant Pearson is not an authorized policymaker because he could only make recommendations to the Board and did not have final authority to create official policy. Citing Pembaur , 475 U.S. at 481, 106 S.Ct. 1292. Defendants further assert that there is no evidence of an illegal official policy or legislative enactment that was followed by the Board or evidence that any individual Defendant had final authority. Citing Burgess v. Fischer , 735 F.3d 462, 478 (6th Cir. 2013). Plaintiff distinguishes this case from Burgess , arguing that Defendants ordered illegal conduct that resulted in her injury. Defendants argue that the Board and the District are entitled to dismissal of all claims because Plaintiff has not produced any evidence of any illegal policy, order or directive of the Board. Garner v. Memphis Police Dept. , 8 F.3d 358, 364 (6th Cir. 1993).
Plaintiff argues that Defendant Pearson and the Board made a deliberate choice to terminate her employment, choosing to terminate her rather than one of several other options, such as other cost saving measures or terminating Teresa Davis. Plaintiff has not offered evidence that any of those other options were presented to the Board to consider or vote on. Plaintiff does not explain how the Boards decision to terminate her constituted the implementation of any policy, order, or directive, and there does not appear to be any evidence that the Boards decision to terminate her was connected to, or stemmed from, any policy, order, or directive of the Board or the District.
Plaintiffs argument that Defendant Pearson had final decision making authority because he executes the dictates of the board is misplaced. If he was executing the dictates of the Board, he was not the final decision maker. Plaintiff undercuts her argument when she states that the Board members can create municipal liability for the Board because they: (a) ratified the illegal conduct of Defendant Pearson; or (b) took illegal actions themselves by voting as composite Board members to terminate Plaintiff for her protected activity, which was the moving force or cause of [her] harm. Citing Pembaur , 475 U.S. at 484-85, 106 S.Ct. 1292.
The Court finds that Plaintiff has failed to establish that there was any policy, order, or directive of the District or Board that was the basis for the votes of the individual Defendant Board members to terminate Plaintiff. The District and the Board are not liable as a matter of law. The Court grants Defendants motion for summary judgment as it relates to the District and the Board.
B. Qualified Immunity
Defendants contend that there is no genuine dispute of material fact whether Defendant Pearson or the individual Board members violated a constitutional right of Plaintiff or that any constitutional right violated was clearly established at the time of their vote. Defendants state that the conduct at issue is Defendant Pearsons recommendation and the vote of the Board members to terminate Plaintiff, effective at the conclusion of the 2015/2016 school year. Defendants assert that no reasonable Board member or superintendent in the individual Defendants positions would think it was an unreasonable action to eliminate one of two assistant superintendents. Defendants represent that the decisions were based on: (1) the Districts need to lay off administrators to reduce the Districts budget deficit; and (2) the fact that Plaintiff, like Defendant Pearson, had a curriculum background, essentially the same skill set. Defendants argue that because Teresa Davis, in Plaintiffs words, sat at table and did the same things as Plaintiff, demonstrates the sheer speculation of Plaintiff that Defendant Pearson and the Board must have retaliated against Plaintiff.
Defendants argue that Plaintiff was not engaged in constitutionally protected activity when she: (a) tangentially participated in the investigation regarding the Anonymous Allegations at the direction of Wahlstrom and the Districts attorneys; or (b) complained about Teresa Davis pay raise. Defendants argue, and the Court finds, that Plaintiffs participation in the investigation regarding the Anonymous Allegations-reporting the issues to local law enforcement and drafting a press release on behalf of the District-was part of her official duties and were not statements made as a citizen. Garcetti , 547 U.S. at 421, 126 S.Ct. 1951.
Defendants contend that Plaintiff was acting as an employee, not as a citizen on a matter of public concern, when she notified Wahlstrom and Defendant Pearson about the raises (and the process by which the raises were) given to Teresa Davis and her team. Plaintiff argues that she worked as the assistant superintendent of a public school district, so her internal complaint to her superintendents (Wahlstrom and Defendant Pearson) was made to a public body. Plaintiff also argues that, prior to reporting the violation to Defendant Pearson, she specifically told Defendant Rickman (as Board President) about the illegal pay raise, which constitutes advancing her complaint to the Board. Defendants assert that such internal complaints involved a matter of personal interest, not a matter to be resolved in the courts. Connick , 461 U.S. at 147, 103 S.Ct. 1684 ; Garcetti , 547 U.S. at 420-21, 126 S.Ct. 1951 ; Weisbarth, supra.
Defendants suggest that Plaintiff has no evidence to connect her alleged constitutionally protected activity with her termination. Defendants state that Plaintiffs uncorroborated testimony about what Defendant Pearson allegedly said to her about the Boards displeasure with the Wahlstrom Litigation and her continued friendship with Wahlstrom is insufficient given the Districts need to reduce its deficit.
Plaintiff responds that the objective illegality of Defendants conduct under Section 1983 is clear, stating that Defendant: (a) instructed her to stop being friends with Wahlstrom and then terminated her employment when she refused; and (b) told Plaintiff that she would not be protected if the Wahlstrom Litigation goes the wrong way. Plaintiff argues that her right to freedom of intimate association and expression under the circumstances of this case were clearly established by the Supreme Court in 2014. Citing Lane , 134 S.Ct. at 2378 (Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment.). Plaintiff asserts that she has produced evidence that Defendant Pearson and the Board members actions were motivated by malicious intent to stop her from being friends with, and participating in the litigation of, Wahlstrom, citing Wood v. Strickland , 420 U.S. 308, 322, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975), including the following comments by Defendant Pearson:
(1) that Pearson cant protect Clemens if shes stupid by maintaining a friendship with Wahlstrom, [Dkt. No. 60,] Exhibit B, Clemens Dep. at 174:24-175:11; (2) that the board wasnt going to be happy about [being served with the Wahlstrom Litigation] and if the lawsuit went the wrong way, there was no way he could protect me. And if I was stupid, there was no way he could protect me, id. at 114:21-115:2; (3) warning Clemens to be careful and asking her to stop talking to Wahlstrom, id. at 121:9-22; (4) that the Board knew I was a part of [Wahlstrom]s lawsuit, that I was helping her in some way with her lawsuit,; (5) that Clemens was complicit in the lawsuit, and that the Board wanted me gone, []get her out of here[] id. at 121:9-22, 183:15-184:11; (6) again stating that if the lawsuit going the wrong way, theres nowhere you can hide, id. at 184:12-25; and (7) stating that Clemens could not be rehired as a principal because the Board see[s] you as complicit in the thing with Deb[.] Id. at 188:5-19.
Dkt. No. 60, PgID 1866-67 (Pearsons Comments). The Court must, for the purposes of reviewing Defendants Motion, accept the preceding statements as true. The Court finds that there are genuine issues of material fact for a jury to decide as to whether these direct evidence statements are causally linked to Defendants decision to terminate Clemens.
C. Inevitability of Elimination of Plaintiffs Position
Defendants argue that, even if Plaintiff can establish a prima facie case of retaliation under Section 1983, Defendants can prove by a preponderance of evidence that her position would have been eliminated even in the absence of her alleged protected activity. Defendants cite Plaintiffs testimony that, in the fall of 2015, the District was, and had been for years, on a deficit elimination plan and that Defendant Pearsons biggest focus was to cut the deficit. Dkt. No. 49-2, PgId 592; Dkt. No. 49-23. Defendants argue that because Defendant Pearsons background aligned much more closely with Plaintiffs (curriculum) than Teresa Davis (financial), Plaintiffs position was eliminated but that if Defendant Pearsons background had aligned more with Davis background, Davis position would have been eliminated. Defendants argue that this legitimate, nondiscriminatory explanation, and the evidence that support it, would preclude any reasonable juror from returning a verdict in Plaintiffs favor, such that Defendants are entitled to judgment as a matter of law. Citing Thaddeus-X , 175 F.3d at 394.
Plaintiff does not directly address this argument, but her general argument that Teresa Davis position, rather than Plaintiffs position, could have been eliminated or other cost saving measures could have been implemented, may serve to undermine Defendants argument, creating a genuine dispute of material fact as to the accuracy of Defendants explanation for her termination.
D. Conclusion
The Court finds that Plaintiffs Section 1983 claim can continue against the individual Defendants as it relates to retaliating against her for her role in the Wahlstrom Litigation and her relationship with Wahlstrom. The Court denies Defendants motion for summary judgment on the Section 1983 claims as it relates to those matters but grants it to the extent the Section 1983 claims are based on her role in investigating the Anonymous Allegations or complaining of the raises given to Teresa Davis and her team.
C. Claim Pursuant to the Michigan Constitution
The District, the Board, and all of the individual Defendants sued in their personal capacities are entitled to summary judgment on Plaintiffs claim pursuant to the Michigan Constitution, as other remedies are available against such defendants. Jones v. Powell , 462 Mich. 329, 335-37, 612 N.W.2d 423 (2000). See also Bennett v. Detroit Police Chief , 274 Mich. App. 307, 315-16 n.3, 732 N.W.2d 164 (2006). Plaintiffs response does not address her claim under the Michigan Constitution. The Court grants Defendants motion for summary judgment on, and dismisses, Plaintiffs claim under the Michigan Constitution.
D. Conspiracy to Intimidate a Witness
42 U.S.C. § 1985(2) provides for a private cause of action against individuals who act, by force, intimidation, or threat to obstruct justice or intimidate a party or witness to testify truthfully in any court of the United States. The statute specifically provides:
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully...the party so injured or deprived may have an action for the recovery of damages occasioned by
such injury or deprivation, against any one or more of the conspirators. To sustain a cause of action under § 1985(2), a plaintiff must prove the existence of a conspiracy among two or more persons. Doherty v. American Motors Corp. , 728 F.2d 334, 339 (6th Cir. 1984). Broad conclusory language void of factual allegations is insufficient to state a claim under Section 1985(2). Jaco v. Bloechle , 739 F.2d 239, 245 (6th Cir. 1984). A plaintiff must allege some evidence of coordinated actions between the alleged conspirators. Bass v. Robinson , 167 F.3d 1041, 1050 (6th Cir. 1999).
Defendants maintain that Plaintiff has produced no evidence, only conclusory allegations, that any Board member: (a) ever discussed with Defendant Pearson her role in the Wahlstrom Litigation (such as her potential testimony); or (b) took any action to deprive of her right to testify truthfully in that case. Plaintiff argues that she has demonstrated multiple specific instances of conspiratorial conduct. She states that her testimony reflects that Defendant Pearson references his conversations with other co-conspirators (individuals on the Board, as well as the Board itself) related to [her] participation in the Wahlstrom [L]itigation and her ultimate termination (which was ratified by the Board, which is comprised of individual voting members). As Defendants argue, there is no non-hearsay evidence of any individual other than Defendant Pearson that there was any discussion of Plaintiffs role in the Wahlstrom Litigation. There is no evidence that any other person took any action to deprive of her right to testify truthfully in that case. Plaintiff contends that it does not matter that it is unclear which specific individual Board members Defendant Pearson spoke with, because a majority of the Board members voted in furtherance of the conspiracy and that he spoke with the Board as a whole, which is a Defendant.
The Court is not persuaded by Plaintiffs argument. The Board as a whole cannot speak or admit anything. At most, Plaintiff has cited Defendant Pearsons alleged statements that the Board was not pleased with Plaintiffs friendship with Wahlstrom or Plaintiffs role with respect to the Wahlstrom Litigation. No other person was identified by Defendant Pearson (in his alleged statements regarding the Boards feelings toward Plaintiff) or Plaintiff as having discussed the matter with Defendant Pearson. Plaintiffs argument is reduced to trying to use Defendant Pearsons statements to establish that he and the Board (or members of it) conspired to threaten Plaintiffs job-and terminate her-because of her relationship with Wahlstrom and alleged involvement in the Wahlstrom Litigation. That is not enough to establish a genuine dispute of material fact. The Court grants Defendants motion as to Plaintiffs Section 1985 conspiracy claim and dismisses that claim.
E. Whistleblowers Protection Act
The Whistleblowers Protection Act (WPA) provides:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employees compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body....
M.C.L. § 15.362. The WPA must be liberally construed in favor of the persons it was intended to benefit. Phinney v. Perlmutter , 222 Mich.App. 513, 546, 564 N.W.2d 532 (1997).
A plaintiff may establish a prima facie case by demonstrating that: (1) she was engaged in protected activity as defined by the Act; (2) the defendant took an adverse employment action against the plaintiff; and (3) a causal connection exists between the protected activity and the adverse employment action. Debano-Griffin v. Lake Cty. , 493 Mich. 167, 175, 828 N.W.2d 634 (2013). If the plaintiff can establish a prima facie case, the employer must come forward with a legitimate reason for the adverse employment action. If the plaintiff fails to show that a reasonable fact-finder could still conclude that the plaintiffs protected activity was a motivating factor for the employers adverse action, the employer is entitled to summary judgment. Id. at 176, 828 N.W.2d 634 (internal citations omitted). The plaintiff must produce evidence that not only raise[s] a triable issue that the employers proffered reason was pretextual, but that it was a pretext for [unlawful retaliation]. Id. (quoting Hazle v. Ford Motor Co. , 464 Mich. 456, 465-66, 628 N.W.2d 515 (2001) ).
Protected activity under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule; (2) being about to report such a violation to a public body; or (3) being asked by a public body to participate in an investigation. Chandler v. Dowell Schlumberger Inc. , 456 Mich. 395, 572 N.W.2d 210, 212 (1998). Plaintiff contends that it cannot be disputed that Clemens engaged in protected activity by (1) participating in the investigation of the Anonymous Allegations, including by reporting the alleged illegal conduct of Defendant Board Member Monk to the Sheriffs Office and Attorney Generals office, and communicating multiple times with the investigating detective; (2) reporting Teresa Davis illegal pay raises to Wahlstrom (her former supervisor), Pearson (her subsequent supervisor), and Board President Rickman; and (3) objecting to Pearson and the Board Members violations of her First Amendment Rights and rights under 29 U.S.C. § 1985 to testify freely in a federal lawsuit. Dkt. No. 60, PgID 1865-66.
Defendants contend that Plaintiffs internal complaint about Teresa Davis pay was not a report of a violation (or suspected violation) of law, as Davis contract had been signed by Wahlstrom prior to Plaintiffs complaint and no one advanced her complaint to the Board, law enforcement, or any other public body. Defendants frame her complaint as one that a similar co-worker was being paid more than her. Plaintiff does not address this argument, except to the extent she framed it in her statement of facts as complaining about the process by which Davis got the raises.
Defendants assert that, even if Plaintiff was engaged in protected activity by participating with Wahlstrom and Teresa Davis when following instructions of their legal counsel, her WPA claim fails because: (a) it was not causally connected to her termination; and (b) she cannot rebut Defendants legitimate, nondiscriminatory reasoning for laying her off.
Defendants suggest that there is no evidence that Defendant Pearson had knowledge of Plaintiffs alleged involvement of the investigation of the Anonymous Allegations. Defendants state that Defendant Pearson was not employed by the District when the events related to that investigation occurred (when she provided a witness statement to the Macomb County Sheriffs Department, participated in the press release, or helped with the cease and desist letter) and was not involved in any concerns regarding Defendant Monk or the Districts past history. Relying on McBrayer v. Detroit Med. Ctr. , 2010 WL 5175458, at *3 (Mich.Ct.App. Dec. 21, 2010) (When there is no evidence that the employer knew about protected activity at the time of the plaintiffs discharge, the requisite causal connection cannot be established.). Defendants argument ignores that: (1) Plaintiff has testified that Defendant Pearson repeatedly commented on (and therefore knew about) Plaintiffs connection with Wahlstrom and the Wahlstrom Litigation, all of which stemmed from the Anonymous Allegations; (2) the Board members-who Defendant Pearson allegedly indicated were criticizing Plaintiff vis a vis Wahlstrom and the Wahlstrom Litigation-clearly knew all about that investigation and Plaintiffs role in it; and (3) Defendant Rickman testified that Defendant Pearson knew what the Pearson Litigation was about. Dkt. No. 60-10, PgID 2280. Defendants knowledge argument must be rejected.
Defendants next suggest that there is no causal connection because: (a) Davis was did the same thing as her and was retained, all of which occurred long after the investigation regarding the Anonymous Allegations was complete; and (b) the decision to not file charges against Defendant Monk was made months before the decision to eliminate her position. Defendants contend that means there was no temporal or logical connection between Plaintiffs role to follow the advice of counsel in the summer of 2015 and the elimination of her position in 2016.
As described above, and the Court finds that, there is evidence of multiple comments by Defendant Pearson related to her participation in the Wahlstrom Litigation and her relationship with Wahlstrom that could be construed as retaliatory. See Pearson Comments, supra Section III.B.1.B. Plaintiff also cites numerous comments by, or occasions involving, Defendant Monk that she believes support an inference of a retaliatory motive, including:
(1) a June 16, 2015 conference call related to the Anonymous Allegations, where Defendant Monk expressed his belief that the actions taken by Wahlstrom, Plaintiff, and the District in pursuing the Anonymous Allegations against him constituted a personal attack, Dkt. No. 60-6, PgID 2128;
(2) on June 17, 2015, when Monk stated at a Board Meeting, [o]utside of attacks on myself, I will maintain professionalism, Dkt. No. 60-18, PgID 2363;
(3) on June 18, 2015, when Wahlstrom received a letter from Defendant Monk dated June 24, 2015, stating that Districts inquiry in to the Anonymous Allegations was an apparent personal attack and that the threatening undertone of Wahlstroms cease and desist letter borders on defamation, Dkt. No. 60-20, PgID 2369-70;
(4) on June 30, 2015, within hours of Wahlstrom issuing a public cease and desist letter to Defendant Monk (a letter written by Wahlstrom and Clemens), when the Board met in closed session to discuss renewing the Agreement;
(5) Defendant Monks belief that the Superintendent and [an anonymous] citizen wrote the Anonymous Allegations and "conspired to defame me, my wife, and my company, Dkt. No. 60-22, PgID2375; and
(6) the discussion by the Board regarding whether Wahlstrom or Plaintiff sent the Anonymous Allegations in the first place. Dkt. No. 60-10, PgID 2266-67.
As Plaintiff states, the Anonymous Allegations issue was revived in November 2015 when the Wahlstrom Litigation was filed, which was only two months before Defendant Pearson told her that she would be laid off. During those two months, he made numerous comments to her about her role in the Wahlstrom Litigation and her relationship with Wahlstrom, and he recommended her termination to the Board at its first meeting after the Wahlstrom Litigation had been served.
Defendants close their argument regarding the WPA claim by noting that they have a legitimate, nondiscriminatory reason for terminating Plaintiff, as discussed in Section III.B.1.C. Defendants state that it was a simple decision: the administration was overstaffed, an assistant superintendent position needed to be eliminated, Defendant Pearson could perform the duties that Plaintiff was performing, as a result, Plaintiffs position was eliminated and she was laid off. Dkt. No. 49, PgID 552-53.
Plaintiff responds that the curriculum-focused argument (i.e. , that curriculum was all she did and that Defendant Pearsons skill set was duplicative of hers) is erroneous. Plaintiff states that there is evidence that Defendant Pearson is skilled in the financial aspects of running a school district, even more so than planning curriculum over the last 25 years. Plaintiff notes that Defendant Pearson admitted having experience with budgets, apparently even putting the budget together in South Lyon, before coming to the District and also participated in drafting the budget for the District. Dkt. No. 60-5. PgID 2085. Defendant Pearson was the treasurer of the Metro Bureau of Directors and Defendant Rickman (the Board President) testified that he knew Pearson had a wealth of knowledge as a superintendent, including putting together a budget. Dkt. No. 60-10, PgID 2269. Conversely, the last time Pearson was managing or changing curriculum for a district was between 1991-95, and he has not been in a classroom since 1985. As he admits, those four years, plus a degree from 1985, constitute the extent of his background in curriculum. Dkt. No. 60-5, PgID 2086-87; Dkt. No. 60-43, PgID 2515-18.
As Plaintiff argues, there is evidence that Defendant Pearson could perform both Plaintiffs duties and Davis duties, so there is a genuine issue of material fact that Defendants proffered reason did not actually motivate the termination of Plaintiff. The Court finds that genuine issues of material fact exist whether the proffered reason for Plaintiffs termination-that Plaintiff was terminated because Dr. Pearson could perform the duties that [Plaintiff] was performing-was pretext for retaliation. The Court denies Defendants motion to dismiss the WPA claim.
F. Michigan Public Policy Claim
A public policy claim cannot be sustained where there is an applicable statutory prohibition against discharge in retaliation for the conduct at issue. Dudewicz v. Norris-Schmid Inc. , 443 Mich. 68, 78-80, 503 N.W.2d 645 (1993) ; Suchodolski v. Mich. Cons. Gas Co. , 412 Mich. 692, 316 N.W.2d 710 (1982) (where the state grants a person subject to retaliation the right to sue, no claim exists for discharge in violation of public policy). As Defendant argues, Plaintiffs public policy discharge claim is based on the allegation that she failed to and refused to violate or acquiesce in, or reported, violations of laws governing fraud, embezzlement, conversion and health code violations, as well as other civil and criminal laws... and that her termination was in retaliation for her failure and refusal to violate or acquiesce in, or report, violations of law and her protected internal reporting of violations of law and regulations. Dkt. No. 1, ¶¶ 96-98.
The Court finds that Plaintiffs public policy discharge allegations are based on the same facts and circumstances as those she cites in support of her WPA claim: (a) her participation in the investigation of the Anonymous Allegations; (b) her relationship with Wahlstrom; and (c) her complaints regarding the pay raises given to Davis and her team. Plaintiff apparently agrees with this analysis, as her response does not address her public policy discharge claim. Accordingly, the Court dismisses Plaintiffs public policy discharge claim as a matter of law.
V. CONCLUSION
Accordingly,
IT IS ORDERED that Defendants Motion for Summary Judgment [Dkt. No. 49] is GRANTED IN PART and DENIED IN PART .
IT IS FURTHER ORDERED that:
A. Counts II, III, and V are dismissed; and
B. Counts I and IV will proceed.
IT IS ORDERED.