Bowles v. Macomb Cmty. Coll.
| Decision Date | 01 September 2021 |
| Docket Number | Case No. 20-13175 |
| Parties | Glenn BOWLES, Plaintiff, v. MACOMB COMMUNITY COLLEGE, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Marc M. Susselman, Marc Susselman, Attorney at Law, Canton, MI, Martin H. Leaf, Martin H. Leaf PLLC, Grosse Pointe Woods, MI, for Plaintiff.
John A. Schapka, Peter C. Jensen, Macomb County Corporation Counsel Office, Mt. Clemens, MI, for Defendants Macomb County, Elizabeth Darga.
Plaintiff Glenn Bowles brings this action under 42 U.S.C. § 1983, alleging procedural and substantive due process violations. (ECF No. 12, PageID.270–76.) He also brings two state libel claims. (Id. , PageID.276–82.) Plaintiff alleges he was wrongfully accused of inappropriate touching of students and using excessive force while teaching as an adjunct instructor at the Macomb County Police Academy ("Academy"), which is administered by Macomb Community College ("College").
On May 7, 2021, the court dismissed with prejudice a procedural due process claim against the College and a § 1983 civil conspiracy claim against the College, the College's Vice President of Human Resources Denise Williams, the Michigan Commission on Law Enforcement Standards ("MCOLES"), and MCOLES Manager of the Standards Compliance Section, Danny Rosa. (ECF No. 29.) Additionally, in the interest of federal-state comity, the court declined to exercise supplemental jurisdiction over related state claims against the College, Williams, MCOLES, Rosa, and Macomb County Sheriff's Office ("Sheriff's Office") undersheriff Elizabeth Darga. (Id. ) Since that order, the parties stipulated and dismissed MCOLES as a defendant. (ECF No. 38.) The remaining claims are 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).
Now before the court is a Motion to Dismiss for Failure to State a Claim filed by Defendants Bourgeois and Rosa. (ECF No. 36.) Plaintiff filed a response, and Defendant replied. (ECF Nos. 42, 43.) Having reviewed the parties’ briefs, the court finds a hearing to be unnecessary.1 E.D. Mich. LR 7.1(f)(2).
The following facts are either alleged in Plaintiff's complaint or agreed upon by the parties. In a motion to dismiss, the court accepts Plaintiff's factual allegations as true but makes no overt finding as to truth or falsity. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
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 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 Sheriff's Office met with the Academy's leadership and informed the 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. )
Notably, Plaintiff claims Defendant Darga, who was an undersheriff in the Sheriff's Office, had a long-running animus against Plaintiff. (Id. ) According to Plaintiff, Defendant Darga previously investigated Plaintiff for a domestic disturbance incident that occurred between Plaintiff and his ex-girlfriend. (Id. ) Plaintiff alleges that 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 Academy. (Id. , PageID.265–70.)
On June 3, 2019, the College's Denise Williams contacted the Academy's Training Director Raymond Macksoud to discuss the complaint 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, the accusation was fabricated by Defendant Darga. (Id. , PageID.266–67.)
The College requested that Plaintiff not participate in the August 2019 police training; Defendant Rosa notified Macksoud of the College's request on July 8, 2019. (Id. , PageID.267.)
Between approximately July 22, 2019, and July 26, 2019, MCOLES representatives, as part of their own investigation, interviewed various cadets as to the allegations against Plaintiff. (Id. ) Plaintiff met with Defendant Rosa on September 24, 2019. (Id. , PageID.267–68.) Defendant Rosa told Plaintiff that he had heard Plaintiff had "struck someone in the groin, who then dropped a weapon that discharged." (Id. , PageID.268.) Plaintiff apparently denied the allegation. (Id.)
On December 23, 2019, Defendant Rosa sent Macksoud an Investigative Summary and MCOLES Conclusion ("Investigative Summary"), which analyzed the evidence of the investigation. (ECF No. 36-1, PageID.888.) Macksoud received it three days later. (ECF No. 12, PageID.269.) The Investigative Summary concluded that Plaintiff was unfit to conduct training of police cadets, and it prohibited Plaintiff from participating in future MCOLES approved training programs. (Id. )
On February 12, 2020, Williams 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.)
Plaintiff asked to reschedule the hearing, and it was reset for February 14, 2020. (ECF No. 18, PageID.438; ECF No. 21, PageID.634.) At the hearing, Williams informed Plaintiff of students alleging inappropriate behavior and provided Plaintiff a summary of the investigative findings. (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." (ECF No. 12, PageID.269.) He had until February 17, 2020, to submit any additional evidence, but declined. (Id. , PageID.316.) Later on February 14, 2020, Defendant College terminated Plaintiff's employment with the Academy. (Id. , PageID.270.)
Plaintiff contacted the representative of his union, the Association of Adjunct Faculty of Macomb Community College ("Union"), asking that it initiate a grievance process challenging the College's decision to terminate his employment. (Id. , PageID.270.) The grievance process, which includes arbitration before a neutral tribunal, was included in the union's collective bargaining agreement ("CBA") with the College. (Id. , PageID.307.) Employment with the College was to be terminated only for "just cause after charges, notice, and hearing" under the CBA. (Id. PageID.269; Id. PageID.302.) On February 28, 2020, the 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.) Under the CBA, Plaintiff could not file a grievance on his own. (Id. , PageID.271; ECF No. 18, PageID.463.)
In the court's previous order granting 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. (Id. ) 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.)
Plaintiff claims Defendant Bourgeois, as Executive Director of MCOLES, was required to provide him with a hearing to satisfy due process. (ECF No. 12, PageID. 272–73.) Plaintiff also alleges Defendant Rosa defamed him in the Investigative Summary that was given to Macksoud. .) Defendants now move to dismiss for failure to state a claim upon which relief can be granted.
Under Rule 12(b)(6), a party can move to dismiss a complaint for "failure to state a claim upon which relief can be granted." When reviewing motions under Rule 12(b)(6), the complaint is viewed in the...
To continue reading
Request your trial