Lange v. City of Benton Harbor

• Decision Date: 27 May 2015
• Docket Number: No. 1:14–CV–601.,1:14–CV–601.
• Citation: 111 F.Supp.3d 785
• Parties: Roger LANGE, Plaintiff, v. CITY OF BENTON HARBOR, Dan McGinnis, and Tony Saunders, individually and in their official capacities, Defendants.
• Court: U.S. District Court — Western District of Michigan

111 F.Supp.3d 785

Roger LANGE, Plaintiff,

v.CITY OF BENTON HARBOR, Dan McGinnis, and Tony Saunders, individually and in their official capacities, Defendants.

No. 1:14–CV–601.

United States District Court, W.D. Michigan, Southern Division.

Signed May 27, 2015.

John T. Burhans, Burhans Law Office PC, St. Joseph, MI, for Plaintiff.

Robert A. Callahan, Plunkett Cooney, Robert H. Cinabro, Robert H. Cinabro PLC, Stephen M. Denenfeld, Lewis Reed & Allen PC, Kalamazoo, MI, Robert J. Sharkey, Vandervoort Christ & Fisher PC, Battle Creek, MI, for Defendants.

OPINION

ROBERT HOLMES BELL, District Judge.

This matter is before the Court on Defendants City of Benton Harbor, Dan McGinnis, and Tony Saunders' motion for summary judgment on Plaintiff Roger Lange's claims. (ECF No. 42.) Plaintiff brought suit against the City and individual Defendants for violations of Michigan's Whistleblower Protection Act, the Elliott–Larsen Civil Rights Act, claim and delivery, and violation of the Fourth Amendment of the United States Constitution. For the reasons that follow, Defendants' motion will be granted in part and denied in part.

I.

Plaintiff Roger Lange was hired as the Chief of Police for the City of Benton Harbor Police Department in October 2009. (Lange Resume, ECF No. 56–1.) In 2011, the Benton Harbor Police Department and Fire Departments merged into the Department of Public Safety. Lange was made the Director of Public Safety. (Id. ) Lange's administrators included Robert O'Brien, a Deputy Director in the new Department with thirty years of law enforcement experience (O'Brien Resume, ECF No. 56–3), Dan Unruh, a Captain with over thirty years of law enforcement experience (Unruh Resume, ECF No. 56–4), and Dan McGinnis.

In 2010, the State of Michigan determined that a financial emergency existed in Benton Harbor. The Local Emergency Financial Assistance Loan Board appointed Tony Saunders as the financial Emergency Manager in January 2013. (Saunders Dep. at 36, ECF No. 56–6.) Shortly prior to assuming his duties as Emergency Manager, Saunders and McGinnis contacted one another through their fraternity email accounts and met up at a restaurant. (McGinnis Dep. at 38–39, ECF No. 56–8.) McGinnis did not notify Director Lange of his meeting with Saunders. (Id. at 42.)

Lange, McGinnis, and Saunders are African–American; O'Brien and Unruh are white. Saunders and McGinnis had been members of the same historically black fraternity chapter at the University of Michigan. (Saunders Dep. at 54; McGinnis Dep. at 16.)

In March 2013, Saunders arranged to meet with O'Brien for lunch, during which Saunders discussed O'Brien's career trajectory with the City of Benton Harbor. (Saunders Dep. at 14.) O'Brien testified that, during the conversation, Saunders told him that he could not be Chief of Police because O'Brien is white. (O'Brien Dep. at 90, ECF No. 56–10.) Furthermore, Saunders said that McGinnis was his "brother" and "untouchable," and Saunders implied that he would replace Lange with McGinnis as the next Chief. (Id. at 90–92.)

The same day, Saunders had another meeting with Lange, Unruh, and Assistant City Manager Debbie Popp. (Unruh Dep. at 57–58, ECF No. 56–11; Lange Dep. at 116.) Saunders discussed that Lange was near retirement, and Saunders felt that McGinnis would be prepared to be chief in five or ten more years. (Unruh Dep. at 59–60.) Saunders told Unruh that Unruh could not be chief because he was the wrong color. (Id.; Lange Dep. at 117–18.) Saunders again expressed that McGinnis was his "brother," and he was "untouchable." (Unruh Dep. at 59–60.)

By late May 2013, Saunders had terminated the employment of thirteen administrative employees, including O'Brien and Unruh. (Saunders Dep. at 148–52.) Saunders had promoted McGinnis to Captain of the Police Division and provided him a salary increase. (Id. at 168.) Lange was aware that Saunders had made remarks about O'Brien and Unruh's limited career potential due to them being "the wrong color," and he suspected that Saunders terminated them for racially motivated reasons. Lange sent a memorandum outlining Saunders' conduct to the Deputy State Treasurer and Governor on June 17, 2013. (June 17, 2013, Memo from Lange, ECF No. 56–21.)

The Treasury Department received the letter by certified mail on June 24, 2013. (Id. ) Lange had a regularly scheduled meeting with Saunders and McGinnis the following day, when Lange provided Saunders with a copy of the letter. (Lange Dep. at 217–18; Saunders Dep. at 179.) After he read the letter, Saunders dismissed Lange and McGinnis from his office and slammed the door after them. (McGinnis Dep. at 81–84; Lange Dep. at 222.) Fifteen minutes later, Saunders asked Lange to return to his office. (Lange Dep. at 223–25.) Saunders began discussing Lange's salary, despite that salary had not been on the agenda for the regularly scheduled meeting that day. (Id. at 220–223.) On July 8, 2013, Saunders cut Lange's pay from $118,000 to $88,500. (Saunders Dep. at 190; Lange Employment Status Change, ECF No. 56–23.) Several weeks later, on July 22, Saunders increased McGinnis' pay from $65,232 to $72,000. (McGinnis Employment Status Change, ECF No. 56–24.)

The Department of Public Safety had come under scrutiny at a July 1, 2013, City Commission Meeting because of the Department's failure to comply with Michigan Occupational Safety & Health Administration ("MIOSHA") regulations during a March 2013 fire when a firefighter nearly died. (City Commission Meeting Minutes, ECF No. 43–11.) An anonymous fax transmission was sent to the City Commissioners on July 18, complaining that Lange was not trained as a firefighter. (July 18, 2013, Fax, ECF No. 43–12; Lange Dep. at 177–78.) Saunders sought the advice of counsel after reviewing the fax, who advised that Lange should train and pass the firefighter certification test. (Email from Scott Eldridge on July 19, 2013, to Saunders, ECF No. 4314.) On July 19, 2013, Saunders called a meeting with Lange to notify Lange that he was relieved of his duties as Director of Public Safety and placed on administrative leave with pay until he passed firefighter examinations in August. (HR Meeting Notes of July 19, 2013, ECF No. 43–17.)¹

Lange went on administrative leave and turned in his office keys, vehicle keys, and firearm. (HR Meeting Notes of July 19, 2013.) Lange was only permitted on City property to the extent necessary to prepare for his August 31 firefighter examination. (Email from Eldridge to Saunders on July 22, 2013, ECF No. 43–15.) Lange passed the written portion, but not the practical portion, of the certification exams. (Letter from Watson to Lange on Sept. 12, 2013, ECF No. 43–19.)

The City recalled Lange from administrative leave and assigned him to the position of Community Liaison Officer. (Id. ) Lange declined the position and requested to be reinstated to his former position as Director of Public Safety. (Letter from Saunders to Lange on Sept. 19, 2013, ECF No. 43–20.) Saunders refused Lange's request, and offered him the options to accept the Community Liaison Officer position, begin an absence of unpaid leave to take the firefighting exams, or resign. (Id. ) Lange began a period of unpaid leave on October 7, 2013. (Letter from Saunders to Lange on Oct. 8, 2013, ECF No. 43–23.)

Lange had stored various personal items in his office while he was Director, including lamps, coffee makers, and a personal hard drive. Prior to returning the hard drive to Lange, McGinnis erased all files on the hard drive, including personal and work-related files. Not all of Lange's items have been returned to him. (Lange Affidavit ¶¶ 2–4.)

Saunders' term as Emergency Manager ended on March 10, 2014. (Saunders Dep. at 47.) Lange passed the certification exam in April 2014. The new City Manager Darwin Watson has not reinstated Lange as Director of Public Safety.

Plaintiff filed a four count Third Amended Complaint: Count 1, Violation of the Michigan Whistleblower Protection Act ("WPA"), Michigan Compiled Laws § 15.363 ; Count 2, Violation of the Elliott–Larsen Civil Rights Act ("ELCRA"), Michigan Compiled Laws § 37.2701 ; Count 3, Claim and Delivery; and Count 4, Violation of the Fourth Amendment to the United States Constitution. Plaintiff initiated this action in the Berrien County Circuit Court, and Defendants removed it to federal court on June 4, 2014. Defendants move for summary judgment on all counts.

II.

The Federal Rules of Civil Procedure require the Court to grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In evaluating a motion for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In reviewing a motion for summary judgment this Court cannot weigh the evidence, make credibility determinations, or resolve material factual disputes. Alman v. Reed, 703 F.3d 887, 895 (6th Cir.2013) ; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that on a motion for summary judgment "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge"). "[T]he district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party." Martin v. Cincinnati Gas and Elec. Co., 561 F.3d 439, 443 (6th Cir.2009) (citing Jones v. Potter, 488 F.3d 397, 403 (6th Cir.2007) ). Nevertheless, the mere existence of a scintilla of evidence in support of a non-movant's position is not sufficient to create a genuine issue of material fact. Liberty Lobby, 477 U.S. at 252, 106 S.Ct. 2505. The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for...