679 F.3d 482 (6th Cir. 2012), 10-2506, Clemente v. Vaslo

Docket Nº:10-2506.
Citation:679 F.3d 482
Opinion Judge:McKEAGUE, Circuit Judge.
Party Name:John CLEMENTE; Brian Dailey; John Werksma; Dennis Stol; Karen Stol; Charles Taylor II; Glenn Ray; Brian DePalma, Plaintiffs-Appellants, v. Frank VASLO, Defendant, Steve Duchane; Robert Bartok; City of Lincoln Park, Defendants-Appellees.
Attorney:Joel B. Sklar, Detroit, Michigan, Karen Mendelson, Ann Arbor, Michigan, for Appellants. Rosalind Rochkind, Roger A. Smith, Garan Lucow Miller, P.C., Detroit, Michigan, Michael S. Borgen, Plunkett Cooney, Kalamazoo, Michigan, for Appellees.
Judge Panel:Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.[*]
Case Date:May 15, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 482

679 F.3d 482 (6th Cir. 2012)

John CLEMENTE; Brian Dailey; John Werksma; Dennis Stol; Karen Stol; Charles Taylor II; Glenn Ray; Brian DePalma, Plaintiffs-Appellants,

v.

Frank VASLO, Defendant,

Steve Duchane; Robert Bartok; City of Lincoln Park, Defendants-Appellees.

No. 10-2506.

United States Court of Appeals, Sixth Circuit.

May 15, 2012

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ON BRIEF:

Joel B. Sklar, Detroit, Michigan, Karen Mendelson, Ann Arbor, Michigan, for Appellants.

Rosalind Rochkind, Roger A. Smith, Garan Lucow Miller, P.C., Detroit, Michigan, Michael S. Borgen, Plunkett Cooney, Kalamazoo, Michigan, for Appellees.

Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.[*]

OPINION

McKEAGUE, Circuit Judge.

Plaintiffs, with the exception of Karen Stol, are former employees of the City of Lincoln Park who were terminated after the City determined that they had tampered with their water meters. Plaintiffs claim that their Fourth Amendment rights were violated when city officials came to their homes to inspect their water meters and that they were terminated in retaliation for asserting those rights. Additionally, one Plaintiff claims that he was discharged in violation of his First Amendment right to association. The district court dismissed the Fourth Amendment claims against individual officials on qualified immunity grounds and granted summary judgment in favor of Defendants on the retaliation, right to association, and municipal liability claims. We AFFIRM.

I. BACKGROUND

Defendant Steve Duchane is the manager of the City of Lincoln Park (" City" ). He met several times with outside auditors regarding the City's loss of water revenue. One of the auditors suggested water theft as a possible explanation, and Duchane decided to investigate. Mazhgon Rajaee, a City intern, was given the task of preparing a water usage study surveying active and retired public employees. City employees were chosen to be the test group because the City already possessed information regarding the number of household members in each home, facilitating analysis. Rajaee used two years of billing information to complete her study. The study showed that the average water usage over that two-year period was 162 units for active employees and 146 units for retirees. The study also showed that the nine lowest consumers were all employees of the Department of Public Services (" DPS" ). This group of nine consisted of Ronald DePalma, Michael Shaffer, and all of the Plaintiffs except Karen Stol, who was not a DPS employee.1

Duchane discussed these results with City Attorney Edward Zelenak and scheduled

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a meeting with the Wayne County Prosecutor's Office. Assistant Prosecuting Attorney Richard Hathaway suggested that the City investigate whether the water meters had been physically tampered with. Deputy Brian White, a Detective with the Wayne County Sheriff's Department, was assigned to assist the City with its investigation.

Robert Bartok, the Director of DPS, and White met with Duchane to discuss the investigation. With guidance from the prosecutor's office, they developed a tiered plan to gain access to the water meters. First, Bartok and White would ask the resident if they could inspect the meter. If access was refused, they would ask the resident if they could inspect the meter pursuant to a city ordinance that allows city officials to enter, with the occupant's approval, any premises with water service for the purpose of inspecting the meter. 2 If refused access again, Mr. Bartok would give a direct order as the resident's supervisor to see the meter. If the resident continued to refuse access to the meter, White and Bartok would leave the residence and seek a warrant.

Bartok and White visited DPS employees suspected of water theft on June 30, 2009. They first visited Ronald DePalma, a DPS Supervisor. Bartok and White requested to inspect the water meter. DePalma consented and led Bartok and White to the meter. The meter head was leaning to one side and a screw was out of place. DePalma admitted to having turned the meter on and off. He ultimately resigned from his position with the City and is not a party to this case.

Next, Bartok and White went to the home of Plaintiffs Dennis and Karen Stol. Mrs. Stol testified that Detective White said he and Bartok " [had] to come in and look at the meter," that she said " no" a couple of times, and that she said she'd rather wait until her husband arrived home. She stated that Detective White was " very persistent and adamant about coming in." Mrs. Stol added that she let White and Bartok in only after she asked whether it would affect her husband's job and Bartok answered yes. Bartok, however, denied being asked that question, and both Bartok and White testified that, upon request, Mrs. Stol allowed them inside and led them to the meter. The Stols' meter head was not attached to the rest of the meter and a security screw was missing.

Plaintiff John Clemente's home was next. Bartok and White requested to see his water meter, but Clemente refused access into his home without a warrant. Bartok cited the city ordinance, to no avail. Bartok then gave Clemente a direct order to allow him to inspect the meter, but Clemente continued to refuse access. White informed Clemente that they could

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get a search warrant but would prefer it if Clemente just gave his authorization. White and Bartok testified that Clemente became animated, stating that " he knew what was going on" and was " going to call everyone to let them know what was going on." Bartok and White then left. Clemente testified that White acknowledged Clemente was not obligated to let them into his house without a warrant.

Bartok and White next visited Plaintiff Brian Dailey. They told Dailey of their intention to investigate illegal water usage and requested to see Dailey's water meter. Dailey refused to let them into his house without a warrant. Bartok cited the city ordinance and gave Dailey a direct order as his supervisor, but Dailey still refused entry, at which point Bartok and White left. Dailey testified that Bartok " got right in [his] face" and yelled when he gave the direct order.

Next, Bartok and White visited Plaintiff Charles Taylor. Nobody answered the door, so Bartok and White left. Bartok noted that Taylor had a pool and nice landscaping.

Bartok and White then visited Plaintiff Glenn Ray. They explained they were investigating water meter tampering and requested to see Ray's water meter. Bartok and White testified that Ray hesitated or seemed to think about it and then allowed Bartok and White inside to inspect the meter. Bartok stated he did not give Ray a direct order, but Ray testified that Bartok did so and additionally informed Ray that he had authority to inspect Ray's meter at any time. While guiding Bartok and White to the meter, Ray became agitated, saying, " I f-ed up," " you got me," " I'm sorry," and " I can't get fired," and began pacing, shaking, and sweating. Ray's meter was disconnected and the head was hanging from a wire.

Lastly, Bartok and White visited Plaintiff John Werksma. White informed Werksma that they were investigating water meter tampering and requested to look at Werksma's meter, upon which Werksma immediately complied. Werksma testified that he voluntarily let White and Bartok into his home. He stated he was anxious because he believed the city was trying to eliminate his position but that he did not resist White and Bartok's entry to his home. Upon viewing the meter, White and Bartok observed that the head was removed from the body. Werksma mentioned that plumbers must have knocked the meter head off the body.

After these inspections, Bartok and White submitted written reports to Duchane and the Wayne County Prosecutor's Office.

On July 14, 2009, Lieutenant Martin of the Lincoln Park Police, along with Bartok and Ed Collins, an independent plumbing contractor retained by the City, executed warrants to search for and seize the water meters located at the residences of Clemente, Dailey, Taylor, Brian DePalma, and Michael Shaffer. Bartok later submitted to Duchane a written report briefly reviewing each visit. He reported that Dailey's and Clemente's meters exhibited visible signs of tampering, that Taylor's and DePalma's meters did not show any immediate signs of malfunction, that Shaffer's meter showed no tamper marks, and that both he and Collins concluded that Schaffer's meter had not been tampered with.

The seized meters were taken to an evidence room at the police department. The City retained Martin Ladd, Director of Public Services for the City of Hamtramck, to inspect them further. Ladd was not given the historical water usage of the Plaintiffs and instructed to simply inspect the physical condition of the meters for anything out of the ordinary. He testified

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that he found indications the meters were damaged or otherwise not normal, such as missing security pins, abnormal positioning of the meter heads, and scratches on the meter even though the pin was not damaged. He stated that such defects were not necessarily the result of intentional tampering and could have been caused by faulty installation. He could not definitively conclude, based on his inspection, that any of the Plaintiffs had tampered with their meter but stated that he would not rule it out as a possibility.

On July 24, 2009, Plaintiffs (except Karen Stol) were notified that the investigation had revealed evidence supporting charges that they improperly received water service and tampered with their meters. Plaintiffs were given an opportunity to respond to the...

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