Farhat v. Jopke

Decision Date28 May 2004
Docket NumberNo. 02-1896.,02-1896.
Citation370 F.3d 580
PartiesKenneth FARHAT, Plaintiff-Appellant, v. Janet JOPKE, in her individual and official capacity; Maureen Kelly, in her individual capacity; Pam Hood, in her individual capacity; Troy School District, Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Timothy M. Holloway (argued and briefed), Taylor, MI, for Appellant.

Ernest R. Bazzana (argued and briefed), Suzanne P. Bartos, Plunkett & Cooney, Detroit, MI, William F. Young (argued and briefed), Jeffrey S. Donahue (briefed), White, Schneider, Barid, Young & Chiodini, Okemos, MI, for Appellees.

Before: ROGERS and COOK, Circuit Judges; BERTELSMAN, District Judge.*

OPINION

BERTELSMAN, District Judge.

The Appellant, Kenneth Farhat, appeals from the district court's grant of summary judgment to the defendants. This action arises from the termination of Farhat from his position as a custodian for the Troy School District.

Farhat raises four issues on appeal: (1) he was discharged in retaliation for exercise of his First Amendment rights; (2) he was denied due process when the school board refused to grant a post-termination hearing in which he could deal directly with the board; (3) an order not to speak to other employees was an invalid prior restraint on his speech; and (4) Appellee Hood is liable under a conspiracy theory for providing information to Appellee Kelly to aid in unlawfully depriving Farhat of his rights. The district court found that no constitutional violations had occurred and granted defendants' motions for summary judgment. For the reasons set forth below, we AFFIRM the judgment of the district court.

FACTUAL BACKGROUND

Appellant Kenneth Farhat was employed as a custodian by the Troy School District for approximately 15 years. He was discharged on September 18, 2000 and initiated this lawsuit against the school district, its superintendent, an assistant principal, and a fellow custodian who is also a union representative. Appellant brought this action pursuant to 42 U.S.C. § 1983.

Appellant's employment history is significant and factors into the asserted justification for the actions of the school district. Appellant had a checkered employment history with the Troy School District. The record reflects that, from at least 1997 forward, Appellant had a history of confrontational behavior as well as hostile and accusatory communications directed toward the school district, its officials, co-employees and toward persons affiliated with the union. Appellant received numerous warnings and other discipline in response to specific behaviors that school officials found to be disruptive to, and inappropriate for, the working environment.

Appellant typically responded to such corrective action with a letter, usually directed to the author of the warning or reprimand. All of Appellant's responses contained primarily personal opinions and conclusions that were directed against specific individuals with whom he had had a disagreement. For example, Appellant routinely referred to others as "sick and demented," "ignorant and abusive," "mentally ill," "mindless criminals," "liars," "lazy and pampered," "alcoholic," "insane," "ignorant," "dysfunctional," "mentally ill freak," "jack ass," and similar terms. The context of such epithets will be addressed later in this opinion in greater detail.

In January 1997, Appellant, then a union steward, attended a grievance meeting. The record reflects that his behavior at the meeting was inappropriate and threatening to others. Appellant received a warning letter from the Superintendent that explicitly explained to him that this type of conduct would not be tolerated and, if it continued in the future, that he could face more severe sanctions, up to and including termination.

In April 1998, Appellant received another written reprimand for his conduct toward the school district's executive director and a secretary. His conduct was described as obnoxious, loud and threatening. In response, Appellant claimed that the statements of the executive director were lies and were intended as discrimination against him due to his affiliation with the union. He claimed that he did not lose control but that it was the school official who lost control at the meeting.

In May — June of 1999, officials of the Michigan Education Association ("MEA" or "the union") corresponded and discussed their concerns about an upcoming union meeting with Appellant and his potential for workplace violence. They expressed concern about their safety and stated that they were seeking outside support and information about what options they had to protect themselves if Appellant became violent.

In January of 2000, Appellant wrote a letter to the Superintendent claiming that he was going to sue the district for libel and slander. He also claimed that he was forced into a meeting where he was threatened with discipline for having a weapon at a union meeting and at the workplace. Appellant further asserted that these "liars" and "cowards" had continued to attack his reputation and that he intended to sue. Again in January of 2000, Appellant threatened to file grievances and to take additional action because he did not get what he wanted.

Yet again, on February 24, 2000, Farhat wrote to the "incompetent administration" claiming that he was wrongfully denied a position because he threatened lawsuits and grievances. He also stated that he had been wrongfully disciplined for uncooperative behavior. He claimed it was others who were uncooperative, not he, as he was "the best custodian in Troy Schools ..." and "the best union representative in Troy Schools, bar none."

On February 24, 2000, there was a significant incident between Appellant and another employee/union representative, Appellee Pam Hood. Appellant's actions in regard to this incident precipitated his termination. On this occasion, Appellant was clearly unhappy about being denied a position he wanted. Appellant phoned Hood, while she was at work, and claimed that this was her fault. Within a short period of time, Farhat called Hood a second time and allegedly threatened her. Hood interpreted Farhat's threats as threats of violence. Appellant allegedly made statements such as, "When I get through with you, you won't be driving a bus or doing custodial work." Afraid to leave the room for fear that Appellant was coming to the building to follow through on his threats, Hood contacted a school official who instructed her to contact the police. Hood then locked herself in a room until the police arrived.

The following day, Appellant was suspended with pay to allow for an investigation of the February 24, 2000 incident.

On March 21, 2000, a meeting was scheduled for Appellant to have an opportunity to explain his behavior. Present at this meeting were Appellant, Assistant Principal Maureen Kelly, and Assistant Superintendent Mike Williams. Appellant was represented at the meeting by union representatives Joe Cusmano, Dominic Asaro and Mel Sledzinski. However, due to Appellant's uncontrolled, explosive and rude behavior, the meeting was recessed at the suggestion of his union representative. Appellant was given several opportunities to speak privately with his representatives before they decided to end the meeting.

Another hearing was held on April 14, 2000. In a letter from the Superintendent, Appellant was advised that after two written reprimands for inappropriate behavior and two disciplinary hearings, he would be given yet another chance. However, because the school district found Appellant's behavior to be threatening, intimidating, and disruptive, it gave him the option of attending an anger management course, plus a 10-day suspension without pay, or 15 days without pay if he did not attend the anger management course. Appellant was instructed not to speak to other employees during his suspension. In this letter, moreover, Appellant was specifically advised that further conduct of this nature would not be tolerated.

On May 11, 2000, Appellant responded by letter, stating that he considered the letter from the Superintendent to be a "joke," and claiming that it was illegal. He claimed that all the allegations against him were lies. He claimed that Hood, other employees, and the school officials had been plotting against him. He stated that he has the flawed character trait of talking "fast and loud" and that this trait was being used against him.1

This letter is filled with vituperative remarks about the school district, specific employees, the union and specific union representatives, and claims of collusion and corruption. The same can be said of his previous letters and conduct. The letter is not specific with regard to the charges of collusion or corruption.

On May 18, 2000, Appellant sent a letter to Lu Battaglieri, the union president. In this letter, Appellant complained that his union representatives did not investigate his complaints as he believed they should. He also claimed they were purposefully not investigating because they were in collusion with the school district. He referred to Hood as a "demented and sick human being" and stated that he, Farhat, was the "only honest union representative in the city." He also referred to the Assistant Principal, Appellee Maureen Kelly, as "mentally ill."

Appellant further stated that he believed the union representatives were creating obstacles for the express purpose of covering up corrupt contract negotiations; preferential treatment of the corrupt representatives resulting in privatization, loss of bidding rights, loss of seniority rights, unwarranted discipline, loss of medical benefits, and loss of sick days; and a hostile environment of dissension and chaos. He claimed that he was disciplined because he chose to expose the union's and the...

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