Pilarowski v. Macomb County Health Dept.

• Decision Date: 12 April 1988
• Docket Number: No. 86-1423,86-1423
• Citation: 841 F.2d 1281
• Parties: John PILAROWSKI, Plaintiff-Appellant, v. MACOMB COUNTY HEALTH DEPT. and Macomb County Board of Commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1281

841 F.2d 1281

John PILAROWSKI, Plaintiff-Appellant, v. MACOMB COUNTY HEALTH DEPT. and Macomb County Board of

Commissioners, Defendants-Appellees.

No. 86-1423.

United States Court of Appeals, Sixth Circuit.

Argued March 13, 1987.

Decided March 15, 1988.

Rehearing and Rehearing En Banc Denied April 12, 1988.

Thomas H. Bleakley, Bleakey & McKeen, P.C., James G. Gross (argued), Detroit, Mich., for plaintiff-appellant.

Robert J. Battista, Butzel, Long, Gust Klein & Van Zile, Mark Nelson (argued), Detroit, Mich., for defendants-appellees.

Before LIVELY, Chief Judge, WELLFORD, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge.

This is an employment discrimination case, brought pursuant to 42 U.S.C. Sec. 1983 in which plaintiff claimed he was discharged for exercising his First Amendment right to freedom of speech. The jury returned a verdict in favor of plaintiff, but the district court set the verdict aside and entered judgment for the defendants. ¹ In granting judgment notwithstanding the verdict, the district court found that plaintiff had failed to prove that his discharge was based on an unconstitutional custom or policy of suppressing free speech. Before submitting the case to the jury, however, the district court denied the defendants' motion for summary judgment. Defendants maintained in the motion for summary judgment that an administrative adjudication of the Michigan Employment Relations Commission precluded further inquiry into the reasons for Pilarowski's discharge under collateral estoppel principles.

I.

Some five years after being employed as an administrative assistant in the Macomb County Health Department, plaintiff began writing "letters to the editor," which were published in several local newspapers. Many of the letters were critical of actions taken by the Macomb County Board of Commissioners, the governing body of the county which controlled the health department funding. In January 1975 Dr. Leland Brown, Pilarowski's immediate supervisor, advised him to stop writing the critical letters to the papers, but Pilarowski continued to do so. On July 28, 1976, Dr. Brown discharged plaintiff for writing the letters. Plaintiff brought suit in state court and ultimately was ordered reinstated with back pay and benefits. Pilarowski v. Brown, 76 Mich.App. 666, 257 N.W.2d 211 (1977). After plaintiff returned to work, Dr. Brown resigned. Plaintiff continued sending faultfinding letters to the newspapers.

After his reinstatement plaintiff apparently assumed additional responsibilities under a series of temporary administrators of the health department. In 1978 the State of Michigan enacted a new public health code that required an extensive restructuring of the health services in Macomb County. M.C.L.A. 333.1101 et seq. The new code made significant changes in the method and amount of state funding for the county health department, requiring Macomb County to fund large portions of its health-related expenditures that formerly had been provided by automatic state disbursements. In January 1978 Macomb County created an umbrella agency, Health Services Administration (HSA), to centralize administration of both the county health department and its department of mental health. In creating HSA the county sought to strengthen administrative resources of the health department generally, and to provide the means for compliance with additional reporting requirements of the new code. Plaintiff was an unsuccessful applicant for the position of director of HSA. Over the next four years several new administrative positions were created within HSA and filled by persons other than Pilarowski. At trial, plaintiff contended that some of these positions were created to reduce his responsibilities. Plaintiff continued to write the same type of letters to the editor during this period of transition.

In 1981 plaintiff was a member of his union's bargaining committee as the union and the county worked on a collective bargaining agreement. The county contended that there was an agreement for a news blackout during negotiations, and that plaintiff violated the blackout by publishing another letter to the editor. Plaintiff maintained that there had been no such agreement at the time of the publication and that the county's negotiator had attempted to impose the blackout for the sole purpose of stopping his letter writing.

One of the Commissioners, Dilber, testified that a considerable time after the labor negotiations had concluded in December of 1981, he overheard an informal discussion between two other Commissioners, Beck and Grove, (the only discussion he had ever heard concerning Pilarowski) indicating that the Health Department "hasn't gotten rid of Pilarowski yet," but "there were ways to work this out." Both Beck and Grove denied that such a conversation ever took place.

In August 1982 the director of HSA proposed several reductions in staff to avoid a projected budget deficit in the Department of Health. If it occurred, such a deficit would violate state law, and the Health Department had exhausted its reserve of general funds. The Macomb County Board of Commissioners adopted the director's recommendation for a reduction in the budget, necessitating lay-offs.

The Health Department was not the only branch of county government at the time affected by the budget crisis and the need for reduction in staff. During the prior year (1981-1982) 32 positions were eliminated in the Health Department. In August of 1982 by a vote of 16 to 9, the Commissioners adopted a revised budget whereby a number of Health Department positions were designated for lay-offs. ² No names of any specific individuals in the department were mentioned in the motion to adopt an amended budget that would require lay-offs in the Health Department. Plaintiff was the only administrator in the Health Department subjected to this lay-off; the other affected employees were dentists and dental assistants. The budgetary action of the Commissioners, however, did not name Pilarowski as a person to be eliminated by reason of the reduction in force.

Within a few months after Pilarowski was terminated, HSA was abolished, and "plaintiff's position was never reconstituted ... four or five people [are now] performing the tasks" which in whole or a part had been assigned to plaintiff. (Plaintiff's brief, p. 15). Before commencing the present action in district court plaintiff appealed his discharge to the Michigan Employment Relations Committee (MERC). Following a hearing, MERC rendered a decision finding that plaintiff was not terminated because of his union activities, and noted that the county had shown legitimate budgetary concerns as a basis of its actions. Among other findings, the administrative law judge found that "[t]he record establishes that there was a need for economy on the part of the County ... an absence of evidence of animosity towards [Plaintiff] ... the elimination of [Plaintiff's position] was the result of County reorganization ... [and] it is inconceivable that the County Board of Commissioners undertook extensive reorganization ... as a pretext in order to eliminate [Plaintiff]." Plaintiff did not challenge the findings of the ALJ or appeal the MERC decision to the Michigan state courts as he was permitted to do under Michigan procedure.

In addition, plaintiff grieved his discharge under provisions of the collective bargaining agreement with Macomb County. The arbitrator found that the economic reasons given for plaintiff's discharge were authentic and reasonable and that there was no evidence to support Pilarowski's claim that he was terminated for exercising his First Amendment rights. At the arbitration hearing the argument presented by plaintiff was that he had been intentionally discharged through a "concerted effort by the Employer to get rid of him for his letter writing and union activity." J/A 297. Proof of both activities, including the alleged brief discussion between Commissioner Beck and Commissioner Grove about getting rid of Pilarowski more than a year and a half before the termination occurred, was presented to the arbitrator. The collateral estoppel argument presented by defendants rested on their claim that the unappealed MERC decision precluded further litigation with respect to the good cause basis for plaintiff's discharge, and that this was further supported by the findings of the arbitrator that there was good cause for the discharge not related to Pilarowski's letter writing and statements made during prior labor negotiations.

II.

Whether or not we adopt defendants' argument that plaintiff should be collaterally estopped from pursuing his claim of an improper discharge because of his letter writing activities, we find (as did MERC and the arbitrator) that the proof in this case is insufficient to establish that plaintiff's First Amendment activities were established as a cause of his termination by the Macomb County Commissioners. Assuming that the alleged conversation did in fact take place between Beck and Grove, two of the twenty-five commissioners, more than a year and a half before the termination took place, there is uncontradicted proof that budget constraints and cutbacks were necessary and mandated in the Health Department and many other departments of Macomb County in August of 1982, and that the Commissioners took budgetary action without specific reference to the individuals who would be affected by the necessary budget reductions. One of the two commissioners alleged to be attempting to "get rid" of plaintiff voted against the reduction ordered. The policy action taken by the County Board of Commissioners, then, was to reduce the budget without specific reference to plaintiff. In order for the Board of Commissioners to be liable for the discharge, plaintiff must present credible proof that the decision to discharge him was made "by reason of his exercise...