Hudson v. City of Highland Park

• Decision Date: 22 November 2019
• Docket Number: No. 19-1036,19-1036
• Citation: 943 F.3d 792
• Parties: Peter HUDSON, Plaintiff-Appellant, v. CITY OF HIGHLAND PARK, MICHIGAN; Derek Hillman; Makini Jackson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

943 F.3d 792

Peter HUDSON, Plaintiff-Appellant,

v.CITY OF HIGHLAND PARK, MICHIGAN; Derek Hillman; Makini Jackson, Defendants-Appellees.

No. 19-1036

United States Court of Appeals, Sixth Circuit.

Argued: October 23, 2019

Decided and Filed: November 22, 2019

Rehearing Denied December 11, 2019

SUTTON, Circuit Judge.

Peter Hudson fought fires for the Highland Park Fire Department for close to thirteen years. During that time, he became a person of faith. For five years, he criticized other firefighters at the station for conduct he thought immoral and harmful to their work, and they responded by criticizing his faith and belittling him in other ways. In 2015, Hudson’s supervisor discovered that he had overreported his hours and discharged him. Hudson sued the city, Fire Chief Derek Hillman, and city Human Resources Director Makini Jackson, on a number of different theories. The district court dismissed some of Hudson’s claims on the pleadings and most of them at summary judgment. We affirm in part and reverse in part.

I.

Hudson worked for the Highland Park Fire Department from 2002 to 2015. Over time, he developed a reputation for two things: being an effective firefighter and being outspoken about his Christian faith. According to Hudson, the other firefighters had reputations too—for watching pornography in communal spaces and engaging in extra-marital affairs at the fire station. All of this created tension. He criticized their behavior, and they responded with disrespectful comments about his religious practices and sexual orientation. The back and forth went on for five years.

Things changed in 2015, when Hudson’s supervisors, Chief Derek Hillman and Human Resources Director Makini Jackson, learned that he had claimed extra "Fire Engine Operator" hours on his time sheet. Hudson responded that any misreporting was a mistake. The department suspended Hudson without pay pending an investigation.

Hudson sought help from his union representatives. At the time, the Highland Park firefighters had a two-layer collective bargaining agreement with the city. They had allowed the Police Officers Association of Michigan, a much larger union, to bargain on their behalf with the city. But the agreement gave the station rights to elect local officers who would be responsible for day-to-day management of union affairs. Both levels initially came to Hudson’s aid. A local union officer attended Hudson’s suspension meeting. And the statewide union filed a grievance with the city challenging Hudson’s suspension. Hillman denied the grievance.

The denial triggered the next phase of the grievance procedure, a "Step 2" meeting in which the employer, employee, and union discuss the issue. Minutes into the meeting, the city added a claim of wrongdoing. Hillman learned that Hudson had not just overreported his hours but had engaged in "double-dipping"—reporting that he had worked a shift for two different employers for the same hours. Hudson conferred with his union representatives who told him to invoke his right not to incriminate himself. Hudson took their advice, and Jackson fired him then and there.

Shortly after Hudson’s termination, the union amended its grievance to account for Hudson’s discharge. The union contacted Jackson and scheduled another "Step 2" meeting to discuss Hudson’s status.

As Hudson tried to keep his job, bad luck intervened and the Highland Park firefighters and the statewide union had a falling out. Some firefighters disliked the local union officers and wanted to hold a new election. The statewide union objected and threatened to withdraw if the firefighters went ahead. This did not deter the firefighters. They elected a new slate of local representatives. Two days later, the statewide union notified the mayor that it no longer represented the firefighters. Hudson’s "Step 2" meeting was cancelled.

Hudson took matters into his own hands. He emailed the local union, asking it to escalate his grievance to "Step 3"—arbitration—and to let him know when the parties selected an arbitrator. The local officials went ahead anyway and scheduled another "Step 2" meeting to "settle" Hudson’s grievance along with any other outstanding grievances. No one notified Hudson about the meeting until the day before it. Hudson responded that he could not attend on such short notice and insisted that the union arbitrate his case.

The local union and the city went ahead with the meeting, and the local union opted not to go forward with Hudson’s grievance. Hudson sought help from the Equal Employment Opportunity Commission, to no avail. He then sued the city, Hillman, and Jackson on an assortment of federal claims. As pertinent here, the district court dealt with the claims in two phases. It dismissed the First Amendment retaliation claims on the pleadings. And it granted summary judgment to the defendants on the rest.

II.

First Amendment retaliation . We review the district court’s decision to grant judgment on the pleadings against Hudson on this claim with fresh eyes, accepting Hudson’s plausible allegations as true and drawing all reasonable inferences in his favor. Sensations, Inc. v. City of Grand Rapids , 526 F.3d 291, 295 (6th Cir. 2008). In qualified immunity cases like this one, we also ask whether the claimant (1) established a constitutional violation (2) that was clearly established. Pearson v. Callahan , 555 U.S. 223, 227, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). In this case, only one question matters. We have repeatedly held—we have repeatedly clearly established—that employers may not retaliate against employees based on their protected speech. Buddenberg v. Weisdack, 939 F.3d 732, 741 (6th Cir. 2019) ; Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1 , 131 F.3d 564, 579–80 (6th Cir. 1997). All that concerns us today is the constitutional question.

To bring a First Amendment retaliation claim, Hudson had to plead three things: that he engaged in protected speech; that he suffered an adverse employment action; and that the fire department fired him because of his speech. Buddenberg , 939 F.3d at 739.

Hudson readily meets the first two requirements. He complained about the poor administration of the fire department, surely protected speech. And the fire department fired him, surely an adverse employment action.

What’s harder is whether the fire department fired him because of his speech. More specifically, did Hudson allege sufficient plausible facts that his speech caused Jackson and Hillman’s decision to fire him? Handy-Clay v. City of Memphis , 695 F.3d 531, 545 (6th Cir. 2012).

The district court didn’t think so. Characterizing Hudson’s pleadings as conclusory and suggesting he had only offered one allegation to sustain his burden, it thought Hudson had not met his pleading burden.

As to Jackson, we agree. Hudson’s complaint places Jackson in the firehouse but makes no allegations she knew about his comments. That’s not enough to make out a plausible case that Jackson fired him for his speech. Cf. Ctr. for Bio-Ethical Reform, Inc. , v. Napolitano , 648 F.3d 365, 377–78 (6th Cir. 2011).

As to Hillman, Hudson’s claim stands on firmer ground. While the question is close, his amended complaint contained enough plausible allegations to move to the discovery stage of the case. For five years, Hudson openly criticized his co-workers’ behavior because he felt it hampered their ability to fight fires. Hillman knew about these comments (some concerned his behavior) and tolerated other firefighters’ dereliction of duty (some of them missed calls to respond to fires). As time passed, Hudson put his complaints into action. A year before his discharge, he filed a complaint with the Occupational Safety and Health Administration, alleging that the firefighters’ cavorting led to deficiencies in the station’s equipment. Hillman, at some point, told another firefighter that he had grown tired of Hudson’s complaints. Hillman eventually found a way to get rid of Hudson: He had falsified his timecard. Hillman fired him on that basis, even though he knew another firefighter had done the same thing. Hudson tells us why: "[Hillman] objected to Hudson’s religious convictions and wanted to stop Hudson[’s] outspokenness against the immorality of Hillman and the firemen." Id. at 15. Considering these allegations as a whole, it’s fair to say that they meet the notice pleading requirements of plausible allegations that Hillman fired Hudson because of his speech.

Hillman counters this conclusion on several grounds, each unconvincing. He believes we lack jurisdiction over the claim because Hudson did not preserve the issue for appeal. But Hudson raised the issue when he challenged the district court’s decision in two motions, saying "there are important other facts supporting causation" and "[t]he Court did not consider ... Hudson’s argument that the free speech claim sufficiently pled causation." R.73 at 6; R.85 at 7. He thus "identif[ied] the issue" and "provid[ed] some minimal level of argumentation in support of it." United States v. Huntington Nat’l Bank , 574 F.3d 329, 331 (6th Cir. 2009).

Hillman separately argues that Hudson lacks sufficient allegations tying the discharge decision to his speech. He notes that over five years passed between when Hudson started speaking and when he lost his job. While a short passage of time between the protected speech and the adverse action sometimes helps a retaliation claim, the opposite is not necessarily true. Our conventional view is to be skeptical that timelines alone prove anything. Hillman does not point to any case in which the mere passage of time dooms a retaliation claim. More to the point, Hudson has more than a timeline, short or long, to show causation. He alleges that Hillman expressed frustration with his complaints—"he was tired of Hudson’s complaints"—and knew that Hudson reported the firefighters to a government agency for their misbehavior. R.61 at 9; Mickey v. Zeidler Tool & Die Co. , 516 F.3d...