Bowles v. MaComb Cmty. Coll.
| Decision Date | 20 April 2022 |
| Docket Number | 20-13175 |
| Parties | GLENN BOWLES, Plaintiff, v. MACOMB COMMUNITY COLLEGE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Plaintiff Glenn Bowles brings this action under 42 U.S.C. § 1983 alleging due process violations and pendent state law claims. Plaintiff filed his First Amended Complaint on January 28 2021. (ECF No. 12.) Since that time, the court has granted motions to dismiss brought by various Defendants, and three counts of his complaint remain: two substantive due process claims brought under 42 U.S.C. § 1983 (Counts IV and V) and a state law libel claim against Macomb County Sheriff's Office Undersheriff Elizabeth Darga (Count XII).
Before the court is Plaintiff's Motion for leave to File a Second Amended Complaint.[1] (ECF No. 49.) He seeks to add a due process claim alleging that either Defendant Macomb Community College (“College”) or Michigan Commission on Law Enforcement Standards[2] (“MCOLES”) violated his liberty interest by providing a news outlet with an MCOLES report that summarized an investigation into Plaintiff's conduct as a police academy instructor. (Id.) The matter has been fully briefed, including two supplemental briefs, which provide context to the complaint's allegations regarding Plaintiff's request for a “name-clearing hearing.” (ECF Nos. 49, 50, 52, 54, 55, 57, 58.) The court does not find oral argument to be necessary. E.D. Mich. LR 7.1(f)(2). For the reasons stated below, the court will deny Plaintiffs' motion for leave to file a second amended complaint.
The court will summarize the facts relevant to this motion, as the court has twice recited the full history of this case. (ECF Nos. 29, 46.)
Plaintiff was a law enforcement officer from 1989 until his retirement in 2012. (ECF No. 12, PageID.264.) While he was still serving as a law enforcement officer, Plaintiff was employed by the Macomb County Police Academy (the “Academy”) as a defense tactics and firearms instructor from 2006 to 2019. (Id.) Defendant College, a public entity, administers the Academy. (Id., PageID.263-64.)
On May 16, 2019, representatives from the Macomb County Sheriff's Office (“Sheriff's Office”) met with the Academy's leadership and informed Academy personnel that a Sheriff's Office cadet filed a complaint against Plaintiff, alleging that Plaintiff inappropriately touched and harassed students during drills and exercises. (Id., PageID.265.) At the meeting, the Sheriff's Office noted that an investigation had been initiated and any wrongdoing would give rise to potential charges with the Macomb County prosecutor. (Id.) It was indicated that the Sheriff's Office would forward the results of the investigation only to the Academy. (Id., PageID.265-66.) Plaintiff alleges that, due to a long-running animus, Defendant Darga was closely involved in the 2019 investigation of Plaintiff's conduct toward cadets and manufactured false claims to destroy Plaintiff's relationship with both the College and the Academy. (Id., PageID.265-70.)
On June 3, 2019, the College's Vice President of Human Resources Denise Williams contacted the Academy's Training Director Raymond Macksoud to discuss a complaint she received from the Sheriff's Office. (Id., PageID.266.) The next day, the College contacted Macksoud telling him that Plaintiff was suspended from instructing at the College until further notice. (Id.) A Title IX investigation was initiated on June 5, 2019. (Id.) As part of the investigation, the College's investigators informed Macksoud that Defendant Darga had accused Plaintiff of striking a cadet “in the groin area which caused the cadet to drop a firearm that accidently discharged.” (Id.) According to Plaintiff, Defendant Darga fabricated the accusation. (Id., PageID.266-67.)
The College requested that Plaintiff not participate in the August 2019 police training, and the Academy was notified of the request by MCOLES manager Danny Rosa on July 8, 2019. (Id., PageID.267.)
On December 23, 2019, Rosa sent an Investigative Summary and MCOLES Conclusion (“Investigative Summary”) to the Academy; the Investigative Summary analyzed the evidence of the investigation. (ECF No. 36-1, PageID.888.) The report concluded that Plaintiff was unfit to conduct training of police cadets, and it prohibited Plaintiff from participating in future MCOLES approved basic training programs. (Id.)
On February 12, 2020, the College sent Plaintiff an email with a letter attachment. (ECF No. 18, PageID.437-38; ECF No. 21, PageID.634; ECF No. 18-2, PageID.478-80.) The letter informed Plaintiff that the College had found that Plaintiff engaged in inappropriate conduct with students, including tickling, groin hits, inappropriate sexual comments, and excessive force. (ECF No. 18, PageID.437-38; ECF No. 21, PageID.634; ECF No. 18-2, PageID.478-80.) The College notified Plaintiff that it intended to pursue Plaintiff's termination because of the misconduct and scheduled a “Loudermill Hearing” for February 13, 2020. (ECF No. 18, PageID.437-38; ECF No. 21, PageID.634; ECF No. 18-2, PageID.478-80.) The College offered Plaintiff an opportunity to respond to its findings. (ECF No. 18, PageID.437-38; ECF No. 21, PageID.634; ECF No. 18-2, PageID.478-80.)
At the hearing, Plaintiff was informed that there were students alleging inappropriate behavior, and the College provided Plaintiff a summary of the investigation. (ECF No. 18, PageID.438; ECF No. 21, PageID.635; ECF No. 12, PageID.269.) According to Plaintiff, he “explained that all of the training techniques he used were approved by the training manuals which were used at the academy” and “denied the generalized allegations which were leveled against him.” (ECF No. 12, PageID.269.) He had until February 17, 2020, to submit any additional evidence, but he declined to do so. (Id., PageID.316.) Later, on February 14, 2020, the College terminated Plaintiff's employment. (Id., PageID.270.)
On February 16, 2020, a local news service, Macomb Daily, published an article that discussed Plaintiff's termination and indicated that it had obtained the Investigative Summary. (ECF No. 49, PageID.1113.) The article outlined Plaintiff's investigation and discussed how recruits “found some actions by [Plaintiff] to be sexually inappropriate, including inappropriate touching, tickling and/or sexual or sexist comments.” (Id., PageID.1177.) Plaintiff contends that the report was supposed to be confidential, and the College or MCOLES is responsible for giving the Investigative Summary to the Macomb Daily. (Id., PageID.1113.)
Plaintiff subsequently attempted to contest his termination by contacting his union and asking that it initiate a grievance on his behalf. (ECF No. 12, PageID.316.) On February 28, 2020, his union informed Plaintiff in writing that it would not initiate the grievance process on Plaintiff's behalf due to an “insufficient probability of success.” (Id., PageID.318.)
In the court's order on May 7, 2021, which granted in part Defendant College's motion to dismiss, the court held that although Plaintiff's union did not pursue his grievance, Plaintiff's procedural due process rights were not violated. (ECF No. 29, PageID.748-56.) All that was required was notice and an opportunity to be heard. Based on the allegations in Plaintiff's complaint, just such a process was established; his union's discretionary decision to not pursue the post-termination process had no bearing on his rights. (Id., PageID.756.) Due process was satisfied because it was the opportunity and availability of recourse to a constitutionally sufficient administrative procedure-not the use of the procedure-to which Plaintiff was entitled. (Id., PageID.754.) The court found that if he thought he was entitled to actually appear at a post-termination hearing, he was required to bring a claim directly against his union. (Id., PageID.754.) Following this order and the court's dismissal of multiple state law claims, the only remaining claims were a procedural due process claim against Defendant Bourgeois (Count II), two substantive due process claims against Defendants Darga and the Sheriff's Office (Counts IV and V), and two libel claims against Defendants Rosa and Darga (Counts IX and XII).
The court subsequently dismissed Plaintiff's due process claims against Defendant Bourgeois (Count II) and the libel claim Danny Rosa (Count IX) in its order dated September 1, 2021. (ECF No. 46.) As stated in that order, the only remaining claims in this action are “two substantive due process claims against Defendants Darga and the Sheriff's Office (Counts IV and V), and a libel claim against Defendant Darga (Count XII).” (Id.)
On September 10, 2021, Plaintiff sent a letter by certified mail to Defendant Bourgeois and Williams requesting that he be afforded a name-clearing hearing either by MCOLES or the College. (ECF No. 49, PageID.1115.) Shortly thereafter, Plaintiff filed the instant motion to amend his complaint, and Defendants' response indicated that the parties had been in contact regarding the requested name-clearing hearing.[3]The court held a status conference on the matter.
The College contends that Plaintiff was not entitled to a name-clearing hearing, but it gave him the opportunity anyway. (ECF No. 57, PageID.1316.) The College mailed notice to Plaintiff that it scheduled the hearing for October 1 2021. (ECF No. 57, PageID.1316.) Moreover, according to the College, “[n]otice of the public name-clearing hearing was published in two different places on the College's website,...
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