Opinion
Case No. 1:00-CV-702
November 28, 2001
OPINION
Plaintiff Kevin Nemetz, a former employee of the Michigan Department of Corrections, filed this employment discrimination action pursuant to 41 U.S.C. § 1983. In an opinion and order dated August 10, 2001, this Court dismissed Counts I and III of Plaintiff's Second Amended Complaint and his Proposed Third Amended Complaint which alleged a 42 U.S.C. § 1983 equal protection claim and a race and gender discrimination claim pursuant to Title VII of the Civil Rights Act. This matter is currently before the Court on Defendants' motion for summary judgment as to Count II of Plaintiff's Third Amended
Complaint, Plaintiff's only remaining claim, alleging a 42 U.S.C. § 1983 First Amendment retaliation claim. For the reasons that follow, the motion will be granted.
On November 2, 2001, pursuant to a stipulation of the parties, Plaintiff was granted leave to file his Fourth Amended Complaint for the sole purpose of correcting any error of paragraph 25. This Court's disposition of the Third Amended Complaint applies equally to Plaintiff's Fourth Amended Complaint.
I.
The following facts are not in dispute. In 1997 Plaintiff Kevin Nemetz was employed as a corrections officer ("C/O") at the Handlon Michigan Training Unit, a correctional facility operated by the Michigan Department of Corrections ("MDOC"), an agency of the State of Michigan.
On July 2, 1997, Defendant Mary Williams, a corrections officer, filed a complaint against Plaintiff Nemetz for harassment. She alleged that on June 21, 1997, she asked Plaintiff about set days off for school, and in response he told her that Deputy Warden Price was a racist, that Deputy Price hated white males, and that women and minorities at the institution were promoted and given special accommodations simply because they were minorities. She alleged that Nemetz made it sound like blacks and women were too stupid or not capable of being promoted.
Mary Williams' complaint against Plaintiff Nemetz stated in pertinent part:
I was in the officers dining hall with C/O Hull and C/O Nemetz came in. I asked him about set days off for school and he went on a rant. He said that Dep. Price was a racist and that she hated white males. He then started naming all the women and minorities at the institution who were promoted and given special accommodations simply because they were minorities. Sgt. Allen came in and C/O Nemetz continued this rant naming Sgt. Allen to his face as one who was promoted because he was a minority. C/O Nemetz made it sound like blacks and women are too stupid or not capable of being promoted. C/O Nemetz look at me and said "You should interview for a Sgt. here. They need a woman." At this point I was so furious I stormed out.
I feel that C/O Nemetz showed that he's a racist and a sexist. I feel that he believes in some warped sense that all the minorities who have been promoted have only been promoted because Deputy Price hates white males or because of some type of quota system. I felt so degraded and enraged by this conversation that I was in tears. I don't have to be subjected to this madness on my job.
Williams' MDOC Compl., Def. Br. Exh. 3).
Defendant Deputy Warden Janette Price assigned Defendant Jan Mittelstaedt, Assistant Resident Unit Supervisor ("ARUS") to investigate the complaint. As part of her investigation of the complaint ARUS Mittelstaedt requested Kevin Nemetz, Brenda Hull and Rodney Allen to fill out questionnaires regarding the incident. ARUS Mittelstaedt was unable to give Plaintiff his questionnaire until August 15, 1997, because he was off work on stress leave. The questionnaire advised that it should be returned within a reasonable time. (Def. Br. Exh. 4) On August 18, 1997, when ARUS Mittelstaedt requested Plaintiff's questionnaire, Plaintiff advised that he needed to review it with his attorney and might be able to provide it on August 22. On August 25 ARUS Mittelstaedt again requested the questionnaire and Plaintiff advised he did not have it yet because it was with his attorney. On August 25, 1997, ARUS Mittelstaedt made her findings without input from Plaintiff. She found that Mary Williams allegations were substantiated. She found that C/O Nemetz's comments violated three of the MDOC's Employee Handbook Work Rules: #1 Humane Treatment; #3 Harassment; and #5 Conduct Unbecoming a Department Employee. She recommended that the case proceed to a disciplinary conference. The same day Warden Makowski suspended Plaintiff for insubordination in connection with his failure to turn in his questionnaire.
The following day Plaintiff's attorney FAXed a copy of Plaintiff's statement regarding the incident with Mary Williams. Plaintiff stated that Williams approached him on June 21, 1997, and asked him why he did not get fixed days off for school. He told her Deputy Price had denied his request for fixed days off:
Officer Williams then asked, "What do you think of Deputy Price?" I responded that it was my personal opinion that Price tends to discriminate in favor of women and blacks in regard to promotion and in the filling of acting positions.
Officer Williams then informed me that she had scored in the first band of applicants for the open sergeant's position, and asked what I thought of her (Williams) being a sergeant. I replied that it was inevitable that she would he the next sergeant because she was a qualified black female, and because the Department has demonstrated a bias in favor of female and black applicants in past promotional decisions. Officer Williams then became volatile and expressed a desire to assault me.
(Pl. Br. Exh. 2).
A disciplinary conference was held on September 5, 1997, before Assistant Deputy Warden ("ADW") Mark Gassman. ADW Gassman found Plaintiff to be in violation of the fourth paragraph of Work Rule #1, Humane Treatment, which prohibits "Speech, action, gesture, or movement that causes physical or mental intimidation, humiliation or harassment." He found Plaintiff to be in violation of the first paragraph of Work Rule #3, Harassment, which provides that "No employee shall sexually or otherwise harass another Department employee, offender, volunteer or visitor as provided in Department policy." The MDOC policy directive regarding harassment defines harassment to include "any words or actions which denigrate or show hostility towards an individual due to that person's race, color, national origin, handicap, gender, age or religion and (1) has the purpose or effect of creating an intimidating, hostile or offensive work environment." ADW Gassman also found Plaintiff to be in violation of the first paragraph of Work Rule #5, which provides that "an employee shall not behave in an inappropriate manner or a manner which may harm or adversely affect the reputation of the Department." (Disciplinary Conf. Summary, Def. Br. Exh. 9). ADW Gassman recommended that Nemetz be suspended for eleven days. This recommendation was approved by Defendant Warden John Makowski and forwarded to Marsha Foresman, Special Assistant to the Director of the Department, who ultimately approved a five-day suspension. (Def. Br. Exh. 11).
II.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 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 (1986). If Defendants carry their burden of showing there is an absence of evidence to support a claim then Plaintiff must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25 (1986).
"On summary judgment, all reasonable inferences drawn from the evidence must be viewed in the light most favorable to the parties opposing the motion." Hanover Ins. Co. v. American Engineering Co., 33 F.3d 727, 730 (6th Cir. 1994) (citing Matsushita, 475 U.S. at 586-88) Nevertheless, the mere existence of a scintilla of evidence in support of Plaintiff's position is not sufficient to create a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The proper inquiry is whether the evidence is such that a reasonable jury could return a verdict for Plaintiff. Id. See generally, Street v. J.C. Bradford Co., 886 F.2d 1472, 1476-80 (6th Cir, 1989).
III.
Defendants' first argument in support of its request for summary judgment is that Plaintiff's First Amendment retaliation claim is barred by the doctrine of res judicata. Defendants contend this is a claim Plaintiff could have raised in a previous action Plaintiff brought in state court.
In his state court action Plaintiff alleged that the MDOC had violated the Freedom of Information Act ("FOIA") by failing to comply with his request for disclosure of information relating to the MDOC's selection of an individual to fill the Corrections Shift Supervisor 11 position for which Plaintiff had interviewed. Plaintiff sought an order mandating disclosure of the information requested as well as attorney fees.
Federal courts look to Michigan law to determine whether a Michigan judgment bars a subsequent claim. Katt v. Dykhouse, 983 F.2d 690, 693 (6th Cir. 1992). "The Michigan Supreme Court has adopted the `broad' application of the res judicata doctrine, barring both claims actually litigated in a prior action and those claims arising out of the same transaction which plaintiff could have brought, but did not." Schwartz v. City of Flint, 187 Mich. App. 191, 194, 466 N.W.2d 357, 359 (1991). "The test for determining whether two claims arise out of the same transaction and are identical for res judicata purposes is whether the same facts or evidence is essential to the maintenance of the two actions." Id. at 194-95.
Plaintiff's first and second lawsuits do not arise out of the same transaction. His FOIA claim arose out of his failure to be selected for a promotion. The present case arises out of the discipline he received after making comments about race discrimination at the MDOC to Mary Williams. Evidence that was essential to the maintenance of his FOIA claim is not the same as the evidence that is essential to the maintenance of this First Amendment retaliation claim. Accordingly, the Court concludes that Plaintiff's present suit is not barred by the doctrine of res judicata.
IV.
Plaintiff filed this action against nine defendants: Janette Price, Barbara Brooks, Larry Ford, John Makowski, Mary Williams, Lance Schuhmacher, Mark Gassman, Jan Mittelstaedt, and the Michigan Department of Corrections.
Plaintiff's allegations against Defendants Barbara Brooks and Larry Ford are directed at their participation in Plaintiff's unsuccessful bids for promotion. Plaintiff alleges that Defendant Brooks and Defendant Lance Schuhmacher were involved in Plaintiff's discipline for insubordination for failing to timely respond to the investigation on Mary Williams harassment complaint. Plaintiff alleges that the discipline for insubordination is evidence of gender and race discrimination. Because Plaintiff's Equal Protection claim and Title VII discrimination claims have been dismissed this Court is no longer concerned with Plaintiff's assertions of discrimination or with the discipline Plaintiff received for insubordination. Because Plaintiff has presented no evidence linking Defendants Brooks, Ford or Schuhmacher to Plaintiff's First Amendment retaliation claim, Defendants Brooks, Ford and Schuhmacher are entitled to summary judgment on Plaintiff's First Amendment retaliation claim.
V.
Defendants' principal argument in support of their request for summary judgment is that Plaintiff cannot demonstrate the existence of a genuine issue of material fact regarding his First Amendment retaliation clam. Plaintiff asserts in Count II of his third Amended Complaint that Defendants violated his right to free speech under the First Amendment of the United States Constitution by pursuing disciplinary action against him in retaliation for speaking to a co-worker about racial and sexual discrimination in the workplace.
Three elements are necessary to establish a First Amendment retaliation claim: (1) the plaintiff engaged in protected conduct; (2) an adverse action was taken against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct; and (3) the adverse action was motivated at least in part by the plaintiff's protected activity. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999); Smith v. City of Holland Bd. of Public Works, 102 F. Supp.2d 422, 427 (W.D.Mich. 2000) (Enslen, C.J.).
Because plaintiff is a public employee, he must make additional showings to demonstrate that his conduct was protected. Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) First, he must show that his speech touched on matters of public concern. Second, his interest in commenting on matters of public concern must be found to outweigh "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. (quoting Pickering v. Board of Educ. , 391 U.S. 563, 568 (1968)). See also Meyers v. City of Cincinnati, 934 F.2d 726, 729 (6th Cir. 1991) ("[S]peech of a public employee is protected if (1) the speech addresses a matter of public concern, and (2) the employer has no overriding state interest in efficient public service that could be undermined by the speech.") (citing Rankin v. McPherson, 483 U.S. 378, 384 (1987). "The initial inquiry into determining whether a public employee's speech is a matter of public concern is a question of law for the court to decide." Johnson v. University of Cincinnati, 215 F.3d 561, 583 (6th Cir. 2000) (citing Rankin v. McPherson, 483 U.S. 378, 386 n. 9 (1987)).
In order to justify a restriction on speech of public concern by a public employee, plaintiff's speech must impair discipline by superiors, have a detrimental impact on close working relationships, undermine a legitimate goal or mission of the employer, impede the performance of the speaker's duties, or impair harmony among co-workers.Johnson v. University of Cincinnati, 215 F.3d 561, 585 (6th Cir. 2000) (quoting Meyers, 934 F.2d at 730). "The state bears the burden of showing a legitimate justification for discipline" Meyers v. City of Cincinnati, 934 F.2d 726, 730 (6th Cir. 1991) (citing Rankin, 483 U.S. at 388; Pickering, 391 U.S. at 570-573).
Defendants contend in their motion for summary judgment that Plaintiff has neither asserted nor can he demonstrate that his interests in commenting on matters of public concern outweigh the interests of the Department in enforcing its policy and operating procedure against harassment of its employees. This Court previously determined that Plaintiff's allegations of First Amendment retaliation were sufficient to survive a motion to dismiss. Now, on summary judgment, this Court must review the evidence of record to determine whether it supports Plaintiff's contention that he engaged in protected speech.
In Meyers the Sixth Circuit held that an assistant fire chief's criticism of an affirmative action program funded by the Department of Labor was a matter of public concern, and that the City did not have a countervailing interest that would permit the limitation of that speech. 934 F.2d at 730. The court noted that there was no evidence that the speech had any adverse effect upon plaintiff's relationship with his co-workers, on the City's affirmative action program, on the City's ability to provide firefighting services, or on the assistant fire chief's ability to command the respect of his minority or non-minority subordinates. Meyers, 934 F.2d at 730. The court found "no evidence of any city interest which would permit the limitation of the speech in question." Id. The court accordingly held that the speech was protected under the First Amendment.
The evidence in this case mirrors Meyers in some respects, but also materially diverges from Meyers in other respects. Both the complaint filed by Mary Williams and Plaintiff's FAXed response to the complaint indicate that in his conversation with Mary Williams Plaintiff asserted that promotions at MDOC were based upon discriminatory considerations. The issue of whether the MDOC discriminates in its promotions is a matter of interest to the community, and about which it is essential that public employees be able to speak out freely without fear of retaliatory dismissal. See Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979) (school teacher's statements concerning the School District's allegedly racially discriminatory policies involved a matter of public concern); Meyers, 934 F.2d at 730 (public employee's opinions about affirmative action program were a matter of public concern). To the extent Plaintiff's speech involved a criticism of race and gender discrimination within the MDOC, his speech was protected.
However, Mary Williams' complaint also contained allegations of a sort not present in Meyers. She complained about Plaintiff's implication that she and other minorities were not qualified for the promotions they received. In this case there is unrelated evidence that Plaintiff's conduct had a direct and adverse effect on his relationship wilt his co-worker, Mary Williams. Mary Williams stated in her complaint that Plaintiff's comments made her so furious she stormed out. (Williams MDOC Complaint, Def. Br. Exh. 3). She stated that she "felt so degraded and enraged by this conversation that [she] was in tears." Id. There is no evidence to refute Mary William's testimony that she found Plaintiff's speech personally offensive and demeaning. In response to ARUS Mittelstaedt's questionnaire, Lt. Rodney Allen stated that as he entered the dining area Ms. Williams "got up in what seemed to be an upset state of mind," and that when he asked her what was wrong she told him she was "too upset to talk about it now." (Allen questionnaire, Def. Br. Exh. 4). Even Plaintiff admits that Mary Williams became so incensed at his remarks that she threatened to hit him and stormed out of the room, (Pl.'s Aff. ¶ 8), and that she "became violatile and expressed a desire to assault me." (Pl.'s Resp. to MDOC Memo, Pl. Br. Exh. 2).
There is no question of fact that Plaintiff's speech had the effect of causing a co-worker personal distress. Mary Williams' reaction conclusively demonstrates that Plaintiff's speech was not solely a commentary on official policy, but was susceptible of being interpreted, and was in fact interpreted, as a personal attack against Mary Williams and other minorities in the Department. An employer has a strong interest in curbing an employee's speech that is directed at disparaging fellow employees on the basis of their gender or race. The MDOC has Work Rules addressing such matters as humane treatment of fellow employees, harassment of fellow employees and conduct unbecoming a Department employee. The MDOC's interest in enforcing these rules and in curbing speech that degrades fellow employees outweighs an individual employee's First Amendment interest in engaging in such conduct at work. To the extent Plaintiff's speech could be interpreted as racial or gender harassment, his speech was not protected.
Accordingly, as to the first element of Plaintiff's prima facie case, it is clear that Plaintiff engaged in both protected and in unprotected speech. Because some of his speech was protected, the Court must proceed with an examination of the next two elements of his prima facie case.
The second element of Plaintiff's prima facie case is whether an adverse action was taken against the Plaintiff that would deter a person of ordinary firmness from continuing to engage in that conduct. To state a claim for retaliation a plaintiff must identify a materially adverse change in the terms and conditions of his employment. Hollins v Atlantic Co., Inc., 188 F.3d 652, 662 (6th Cir. 1999).
[A] materially adverse change in the terms and conditions of employment must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation.Id. (quoting Crady v. Liberty Nat'l Bank Trust Co. of Indiana, 993 F.2d 132, 136 (7th Cir. 1993)).
The discipline Plaintiff received for his comments to Mary Williams was a five day suspension. The Court is satisfied that although this is not a particularly harsh sanction, it was designed to deter similar conduct in the future, it resulted in a loss of pay. (Def. Br. Exh. 11). This suspension is sufficient to constitute an adverse employment action. See McKethan-Jones v Ohio Dep't of Health, No. 00-3084, 2001 WL 345782 (6th Cir. March 27, 2001) (unpublished) (five day suspension without pay constituted adverse employment action for purpose of retaliation claim under Title VII).
Finally, the Court considers the third element — whether the adverse employment action was motivated at least in part by Plaintiff's protected activity. "Here the subjective motivation of the defendants is at issue." Thaddeus-X, 175 F.3d at 399. "Once the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant." Id. (citing Mount Healthy City Sch. Dist. Bd of Educ. v. Doyle, 429 U.S. 274 (1977)). "If the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on summary judgment." Thaddeus-X., 175 F.3d at 399. As this Court noted in its August 10, 2001 opinion, this issue is normally for the jury. See Perry v McGinnis, 209 F.3d 597, 604 n. 4 (6th Cir. 2000). The motivation behind a disciplinary action is generally a question of fact. Meyers, 934 F.2d at 729. However, if the record leaves no room for reasonable minds to differ, the Court may decide the issue on summary judgment. Id.
In this case there is no evidence from which a jury could find that Plaintiff was disciplined as a result of his criticism of the discriminatory practices in the MDOC. The unrefuted evidence reveals that Defendants were motivated by a desire to adhere to the Department's harassment policy and work rules against inhumane treatment of its employees. ARUS Mittelstaedt found at the conclusion of her investigation that Plaintiff's comments violated departmental policy "by denigrating and causing hostility towards an individual due to his/her race color, national origin, handicap, gender, age, or religion, and created an intimidating, hostile, or offensive working environment." (Def. Br. Exh. 7). The three work rules she charged Plaintiff with violating were all directed at prohibiting conduct degrading to a fellow employee. ADW Gassman's findings after the disciplinary conference mirrored the findings of ARUS Mittelstaedt. The evidence was sufficient to support a finding that the Plaintiff violated the three work rules. Plaintiff was disciplined only for the speech that was interpreted as an attack on a fellow employee. This is a legitimate basis for discipline. There is nothing in the record to remotely suggest that Plaintiff was disciplined for voicing his objections to discriminatory actions by his superiors. The Court finds no causal connection between Plaintiff's protected speech and the adverse employment action. Plaintiff states in his affidavit that he had expressed his views about discrimination at the facility to Defendants Price, Williams, Makowski, and Schuhmacher. (Nemetz Affidavit ¶¶ 6, 19, 25).
According to Plaintiff "There is no other explanation possible for the way that the disciplinary matters to my case were handled except that the individuals involved wanted to get rid of me or silence me in connection with the views that I had expressed about discrimination at the facility." (Nemetz Affidavit at ¶ 26). This is not evidence. This is merely a conclusion, and it is not a reasonable inference from the facts of record. No reasonable juror could find for Plaintiff on the basis of this evidence alone.
Because there is no evidence in this record that Plaintiff was disciplined because of his protected speech, Plaintiff has failed to make out his prima facie case of First Amendment retaliation, and Defendants are entitled to summary judgment on this claim.
For all these reasons, summary judgment will be entered in favor of the Defendants and Plaintiff's complaint will be dismissed in its entirety.
An order consistent with this opinion will be entered.
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendants' motion for summary judgment (Docket # 45) is GRANTED.
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of Defendants and Plaintiff's complaint is DISMISSED in its entirety.