Walraven v. Bay Cnty. Sheriff John Miller
| Decision Date | 28 January 2016 |
| Docket Number | Case No. 14-cv-12517 |
| Parties | FRED WALRAVEN, Plaintiff, v. BAY COUNTY SHERIFF JOHN MILLER, in his Official and Individual Capacities, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Honorable Thomas L. Ludington
This case may raise many legitimate questions. It does not, however, raise a question of First Amendment retaliation. Pled only as such, it must be dismissed.
Defendants Bay County Sheriff's Department and Bay County Sheriff John Miller move for summary judgment on all of Plaintiff Fred Walraven's claims. See Defs.' Mot. Summ. J., ECF No. 31. Walraven claims that Defendants violated both federal and Michigan law by terminating his employment on April 15, 2014. See Pl.'s Compl. ECF No. 1. According to Walraven, his termination was retaliation for the exercise of his First Amendment rights, a violation of 28 U.S.C. § 1983. Defendants also, according to Walraven, violated the Michigan Public Employment Relations Act and Whistleblowers' Protection Act by terminating him.
Defendants disagree and have moved for summary judgment on Walraven's claims. They argue that Walraven has not established a genuine dispute of material fact that his First Amendment rights were violated. Further, Defendants claim he cannot demonstrate a connection between his union activity and his termination, a showing necessary to maintaining a PERA claim. Lastly, Defendants argue that Walraven cannot demonstrate that his case meets the elements of a Whistleblowers' Protection Act claim.
Because Walraven does not have a cognizable First Amendment retaliation claim, that count of his complaint will be dismissed with prejudice. Walraven's remaining state law causes of action will be dismissed without prejudice.
Plaintiff Fred Walraven is a former Correctional Facility Officer ("CFO") and Sergeant at the Bay County Jail. His employment was terminated on April 15, 2014. Defendant Bay County Sheriff's Department is the law enforcement agency of the Bay County government. The Sheriff's Department is tasked with the administration of the Bay County Jail. Defendant John Miller is the Bay County Sheriff.
What follows is a brief summary of the facts that gave rise to this lawsuit. They are not necessarily the facts that are germane to Walraven's legal claims. Indeed, those facts are few. Understanding and placing the facts relevant to Walraven's claims in context, however, requires a broader understanding of the activity at the Bay County Jail in late 2013 and early 2014. That chronicle is what follows.
Beginning in late 2013, conduct occurred at the jail that led to a series of internal investigations being conducted. In total, three internal investigations were conducted with one employee being reprimanded, one terminated, and another resigning. The employee that was terminated was Walraven. All three of the investigations began in early 2014 and concludedwithin a few months. Only two of the three investigations are relevant to Walraven and so only those two will be discussed.1
Captain Troy Stewart is the jail administrator at the Bay County Jail. As Jail administrator he is tasked with the "care and custody" of the inmates. Shore Dep. 64, Ex. R, Def.'s Mot. Summ. J., ECF No. 31-19. Taking this responsibility perhaps too seriously, Stewart procured a bottle of prescription mouthwash for an inmate suffering from rather severe halitosis. Stewart procured the bottle through his wife, at the time a dental assistant. But since the inmate could not leave the jail to be examined by an outside dentist, and because the inmate was not a patient of this dentist, Stewart had the bottle prescribed to his wife. He then picked up the bottle of mouthwash at the pharmacy, scratched off his wife's name, and left the bottle, with use instructions, for the inmate.
Not unexpectedly, the information that Stewart procured this mouthwash for an inmate spread. Also not unexpectedly, rumor spread, that the mouthwash contained a controlled substance.2 Word spread from the inmates to the jail staff. When the tale of the mouthwash became embellished, Stewart decided that he should report to Undersheriff Troy Cunningham that he had brought the mouthwash into the jail.
Upon learning of Stewart's conduct from his undersheriff, Sheriff Miller ordered an investigation. Miller Dep. 10-11, Ex. T, Def.'s Mot. Summ. J., ECF No. 31-21. Miller appointed Sergeant Michael Shore to conduct the investigation. Id. The investigation began on January 13,2014 and involved interviewing a number of individuals in the jail, including Stewart. Shore Dep. 11, 16.
Because of the claims that the mouthwash was a controlled substance smuggled into the jail, Sergeant Shore treated the investigation as one into criminal activity. Shore Dep. 21-22. This could result in a number of different outcomes, including prosecution. As a result, all individuals interviewed were instructed not to discuss the investigation with anyone but the Sheriff and Undersheriff. See, e.g., Shore Interview Notes, Ex. U, Def.'s Mot. Summ. J., ECF No. 31-22. Despite being treated as a criminal investigation, the investigation events were never memorialized in a police report, as is common. Shore Dep. 23-24. This was done at the direction of Undersheriff Cunningham. Id.
The investigation concluded on February 27, 2014 with Sergeant Shore furnishing a report to Sheriff Miller in early March. The report was forwarded to the Bay County Prosecutor on March 10, 2014. See Case Review Sheet, Ex. U, Def.'s Mot. Summ. J., ECF No. 31-22. On March 25, 2014, the Bay County Prosecutor reviewed Sergeant Shore's report and declined to prosecute, noting "lack of criminal intent - insuff. evid to establish violation of criminal statutes." Id. (sic throughout).
A copy of the report was also sent to the Sheriff. On the basis of the report, Sheriff Miller met with Captain Stewart to discuss and respond to the allegations of his conduct. Following that meeting, Sheriff Miller issued a letter of reprimand to Captain Stewart. Sheriff Miller wrote:
Letter of Reprimand, Ex. U, Def.'s Mot. Summ. J., ECF No. 31-22.
Not long after Stewart brought the mouthwash into the jail, another allegation of misconduct arose and resulted in an investigation targeting Walraven. The report of misconduct was allegedly anonymous, brought to jail administration's attention by a "kite" (or, as it may be more commonly known outside a jail, a note) slipped under the door of Undersheriff Cunningham on January 23, 2014. The note simply requested that Undersheriff Cunningham review jail security footage from the night shift "on certain dates and at certain times." Cunningham Aff., Ex. W, Def.'s Mot. Summ. J., ECF No. 31-24. The security footage from the dates and times listed in the "kite" showed CFOs "engaged in numerous unacceptable activities, including cell phones in the jail, playing cards for extended periods of time, damaging jail property, conducting outside business when in the jail[,] not monitoring video security cameras as necessary[,] and various other violations of department policy." Id. Defendant Walraven was the supervising CFO during all of these shifts. Id. Undersheriff Cunningham ordered Sergeant Shore to conduct an investigation into "any improper employee practices by the CFO's [sic] on duty and shared the information on the tapes with him." Id. Thus, began Sergeant Shore's second investigation.
In Undersheriff Cunningham's deposition, he makes no mention of this "kite" but instead states more generally that "some employees complaining" about Walraven led to Shore's investigation. Cunningham Dep. 9, Ex. 10, Pl.'s Resp., ECF No. 34-11. He also admits that he was aware of employees making comments to Sergeant Shore about Walraven during the investigation into Captain Stewart. Id. at 9-10. One interview where the topic of Walraven arose was Sergeant Shore's interview with Deputy Jeff Sargeson. See Shore Interview Notes, Ex. U.Sergeant Shore interviewed Deputy Sargeson on January 17, 2014, one week before the "kite" was slipped under Undersheriff Cunningham's door.3
Sergeant Shore began his investigation into Walraven's conduct on January 27, 2014. See Shore Interview Notes, Ex. Z, Def.'s Mot. Summ. J., ECF No. 31-27. Sergeant Shore conducted the final interview in the Walraven investigation on March 4, 2014. Id. Despite the investigation into Walraven being non-criminal, Sergeant Shore requested that each interviewee not share anything discussed in the interviews. Id.
Walraven places particular emphasis on Sergeant Shore's interview of Sergeant Lester Cosineau. During this interview, Cosineau made a number of allegations concerning Walraven's conduct, or misconduct. Cosineau also relayed to Sergeant Shore that Walraven was "fired up" about the investigation into Captain Stewart's conduct. Cosineau told Sergeant Shore that Walraven believed that the investigation should be conducted by the Michigan State Police. Further, Walraven apparently told Cosineau (who then told Shore) that if the administration started "'going after' employees over this" Walraven would go "right to the Bay City Times to let them know." Shore Interview Notes, Ex. Z. Cosineau also told...
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