Schroeder v. City of Vassar

• Decision Date: 25 May 2005
• Docket Number: No. 04-10195-BC.,04-10195-BC.
• Parties: Ronald SCHROEDER, Plaintiff, v. CITY OF VASSAR and Scott Adkins, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

371 F.Supp.2d 882

Ronald SCHROEDER, Plaintiff, v. CITY OF VASSAR and Scott Adkins, Defendants.

No. 04-10195-BC.

United States District Court, E.D. Michigan, Northern Division.

May 25, 2005.

COPYRIGHT MATERIAL OMITTED

Glen N. Lenhoff, Michael E. Freifeld, Law Office of Glen N. Lenhoff, Flint, MI, for Plaintiff.

Robert J. Seibert, Seibert & Dloski, Mt. Clemens, MI, for Defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

LAWSON, District Judge.

The plaintiff, Ronald Schroeder, was fired from his job as the City of Vassar's director of public services. He brought suit alleging that his termination was a result of complaints he made about acts of sexual harassment by fellow city workers, and he alleges that the defendants' actions were unlawful under the First Amendment, the Michigan Whistleblowers Protection Act, Mich. Comp. Laws § 15.362, and the Michigan Elliott-Larsen Civil Rights Act, Mich. Comp. Laws § 37.2701. The defendants have filed a motion for summary judgment contending that as a matter of law the plaintiff's comments did not touch on a matter of public concern, and even if they did the undisputed facts show that the plaintiff's termination was not motivated by the plaintiff's speech. The individual defendant, city manager Scott Adkins, also contends that he is entitled to qualified immunity. The plaintiff filed an answer and brief opposing the motion. The Court heard the parties' arguments through counsel in open court on April 28, 2005. The Court finds that although the plaintiff's statements were made in defense of allegations of his own alleged misconduct, they included complaints about matters of public concern that were constitutionally protected, there is a fact question whether those comments were part of the reason that motivated the plaintiff's termination, and the constitutional right that the plaintiff claims were violated was not clearly established in the factual context presented by the record in this case. The Court, therefore, will deny the City of Vassar's motion for summary judgment and grant defendant Adkins' motion for summary judgment based on qualified immunity.

I.

The plaintiff, Ronald Schroeder, began employment with the defendant City of Vassar on August 19, 2002 as the superintendent of the city waste water treatment plant. He reported directly to his supervisor, defendant Scott Adkins, the Vassar City Manager. Adkins had responsibility for the city's daily administration and, according to the city charter and Adkins himself, he had sole authority to hire and terminate city employees in Schroeder's position. See Pl.'s Ans. to Mot. Summ. J. Ex. 7, City Charter § 3.9; Ex. 6, Scott Adkins Dep. at 10. In July 2003, Adkins promoted the plaintiff to the position of Director of Public Services in a new department that consolidated waste water treatment operations with the Department of Public Works. Schroeder continued to report directly to Adkins.

After the plaintiff was promoted, he began to spend more time at city hall where he encountered some female city workers with whom he apparently did not get along. The relationship was marred by harsh comments by the plaintiff, who was critical of certain juvenile and lascivious remarks made by the females concerning a male contractor about whom they expressed a copulatory interest. These exchanges led to complaints by and against the plaintiff for violating the city's sexual harassment policy, and eventually to the plaintiff's termination on July 15, 2004. The plaintiff alleges that he was fired for complaining about matters of public concern, specifically the conduct of coworkers that violated the city's sexual harassment policy. The defendants contend that they terminated the plaintiff for a variety of reasons unrelated to his speech, including poor performance, violation of safety policies, and his own misconduct. There is no dispute that the speech that the plaintiff claims is protected by the First Amendment arose in the course of a personnel dispute. Matters such as this have been characterized as "mixed speech" cases that are "highly fact-specific." See Farhat v. Jopke, 370 F.3d 580, 590 (6th Cir.2004). Consequently, some detail concerning the dispute, the context in which the speech was uttered, and the plaintiff's performance during his tenure is appropriate.

Throughout his tenure, the plaintiff generally received positive performance evaluations. Adkins formally evaluated the plaintiff's performance on November 26, 2003, stating:

Ron is a good leader and supervisor ... Ron has taken a great amount of time to reorganize the department and make positive changes.... Ron needs to become more assertive with certain department members and work more to improve meeting deadlines and accomplishing tasks in a timely manner. These problems lie more with subordinates than with him as a department head.

Pl.'s Ans. to Mot. Summ. J. Ex. 9, Evaluation. The plaintiff received letters of recommendation from other city officials, and was recommended for a significant merit based pay raise for fiscal year 2005. The city's mayor, Evart Stewart, testified that the pay raise indicated the plaintiff was not performing poorly and that he thought the plaintiff performed adequately. Id. Ex. 13, Evart Stewart Dep. at 25, 28-29. Other city officials corroborated this testimony. Id. Ex 14, Councilperson Penny Germain Dep. at 12-15; Ex. 15, Councilperson David Deland Dep. at 16-18; Ex. 16, Councilperson Patricia Gawne Dep. at 16-18.

After the plaintiff was promoted, he observed what he considered to be harassing conduct directed toward an electrical contractor named Mark Cooper, who worked for Cooper Electric and provided electrical technician services to the city. Schroeder alleges that female city employees made comments whenever Cooper's name was mentioned, specifically describing three incidents. Sometime in the beginning of July 2003, the plaintiff issued a request for some electrical work. He heard the Utility Billing Clerk Merri Lemcke and Deputy Clerk Sue Kern argue over who would contact Cooper, commenting on the contractor's looks, saying "how hot he was, and `[o]h, what a body.'" Defs.' Mot. Summ. J. Ex. A., Pl.'s Dep. at 25. Cooper was not present, and the plaintiff made no complaint. Within a couple of months, the city began planning underground wiring for its fairgrounds. During a gathering of city officers, attended by Adkins, the clerks again argued over who would contact Cooper. Sue Kern commented that "I'm married, but I'll tell you what, I'd still do him." Id. at 27. Cooper was not present at the time, and the plaintiff did not file a complaint, claiming he was discouraged by Adkins' response of "rolling his eyes." Ibid. Then in November 2003, the city needed the electrical socket located in front of city hall repaired to power Christmas lights. Cooper serviced the socket, which required him to dig with a shovel. Female employees of the city, namely Lemcke, Kern, and Tina Bacon, watched Cooper out the window and made sexual comments about Cooper's posterior and physique. Id. at 28. Again, Cooper was not present when the employees made the comments. Schroeder also claims that Kern kept newspaper clippings of Cooper in her desk and that Lemcke told the plaintiff that "if anything happens to [Kern] I am to destroy [the clippings] in case her husband has to come and clean out her desk." Id. at 29. Furthermore, he describes an unrelated incident when Adkins and Lemcke each showed him a sexually explicit, offensive video on a computer monitor. Id. at 30-31. Although the plaintiff later filed a written complaint formally alerting Adkins to the problems, he testified that he discussed the problem in terms of "other employee's attitudes" with Adkins on several occasions. Id. at 33, 34.

Vassar has a written sexual harassment policy that defines prohibited conduct, prohibits sexual harassment, prescribes a three-step progressive discipline procedure ending in termination, directs affected employees to report complaints to the city manager, prohibits retaliation, and requires prompt investigation and follow-up.

According to Adkins, on May 21, 2004, the plaintiff belligerently confronted Adkins during a department head meeting over matters apparently unrelated to sexual harassment. Pl.'s Ans. to Mot. Summ. J. Ex. 6, Scott Adkins Dep. at 42-43. Later that day, Adkins met with the plaintiff to discuss his performance. Atkins later wrote two appraisals of substandard work performance by the plaintiff, but did not mention the plaintiff's behavior at the meeting. The first appraisal notes that it memorialized a verbal correction of the plaintiff, and states in relevant part:

On May 21, 2004 a discussion was held with the employee concerning work performance. Topics included lack of direct communication with City Manager for a period of over 3 ½ weeks from April 23, 2004 until department head meeting this date (May 21, 2004). During this time period, only minimal conversation occurred, no verbal response to directives, only brief written notes were presented or messages provided by means of other employees. This concern was heightened during a period of severe weather and flood threats, whereby City Manager was unable to contact Mr. Schroeder on numerous occasions to receive Cass River water levels. City Manager received these levels from other City Employees (Dennis Schultz and Dennis Fent) and also through NOAA website. [sic] This action was a significant breach of job duties under the existing employee manual, and could have posed a threat to the Health, Welfare and Safety of City residents. This matter was verbally discussed at this verbal counseling meeting. Mr. Schroeder was also counseled concerning his timeliness in completing necessary tasks and reporting the progress to his immediate supervisor, the City Manager. Additional items discussed concerned follow-through on a directive given...