635 F.Supp.3d 593
E.D. Mich.2022Background
- March 2019: a UM‑Dearborn student reported being sexually assaulted by a professor; Ashford (DPSS security officer) learned of the complaint and later became concerned that the investigation was being mishandled and possibly covered up.
- Ashford raised concerns internally (to Chief Gorski, HR, and the Board of Regents) in September 2019 and sent an anonymous letter to the Regents; an internal belief that a warrant package had been submitted was incorrect until October 2019.
- Another officer contacted a Detroit News reporter; that officer gave the reporter Ashford’s contact. Ashford spoke anonymously to the reporter; the article alleging a cover‑up ran November 3, 2019.
- Chief Gorski initiated a Professional Standards Investigation (PSI) against Ashford for leaking department information and for statements damaging to department morale; Chief Neumann’s PSI led to a 10‑day suspension in January 2020.
- Ashford sued asserting (1) First Amendment retaliation under §1983, (2) Title IX retaliation, (3) Michigan Whistleblower Protection Act (WPA) retaliation, and (4) a Michigan public‑policy wrongful‑discharge tort; defendants moved for summary judgment.
- Court decision: summary judgment DENIED as to Counts I (First Amendment), II (Title IX), and III (WPA); GRANTED as to Count IV (public‑policy tort).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation | Ashford spoke as a private citizen to the press about a matter of public concern (departmental mishandling/cover‑up); discipline was retaliatory | Speech was within employee duties (not private citizen speech); qualified or absolute immunity shields defendants | Court: speech was private‑citizen, matter of public concern; prima facie retaliation shown; qualified immunity denied; summary judgment denied on Count I |
| Title IX retaliation | Ashford’s internal reports (to chain of command, HR, Regents) complaining about Title IX handling were protected; discipline was retaliatory | No causal link or pretext; discipline based on leak to press, not internal reports | Court: genuine issues of fact on causation/pretext exist; summary judgment denied on Count II |
| Michigan Whistleblower Protection Act | Reports to a public body (chain of command, HR, Regents) are protected; discipline was retaliation | Statements to press not covered; no causal link between protected reports and discipline | Court: WPA claim mirrors Title IX analysis; factual disputes remain; summary judgment denied on Count III |
| Michigan public‑policy tort (wrongful discharge) | Ashford refused to acquiesce in allegedly unlawful Clery reporting (refusal to conceal) and thus may assert a public‑policy claim | WPA provides exclusive remedy for reporting/refusal to conceal; public‑policy claim is preempted | Court: WPA preempts the common‑law public‑policy claim here; summary judgment GRANTED as to Count IV |
Key Cases Cited
- Thaddeus‑X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (elements of a public‑employee First Amendment retaliation claim)
- Lane v. Franks, 573 U.S. 228 (U.S. 2014) (speech concerning information acquired via public employment is not automatically employee‑speech)
- Mayhew v. Town of Smyrna, 856 F.3d 456 (6th Cir. 2017) (factors for whether public employee spoke as private citizen)
- Bose v. Bea, 947 F.3d 983 (6th Cir. 2020) (Title IX retaliation elements)
- Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994) (First Amendment retaliation law in this Circuit)
- McNeill‑Marks v. Midmichigan Med. Ctr.‑Gratiot, 891 N.W.2d 528 (Mich. Ct. App. 2016) (WPA exclusivity/preemption of common‑law public‑policy claims)
- Suchodolski v. Mich. Consol. Gas Co., 316 N.W.2d 710 (Mich. 1982) (recognition of implied public‑policy wrongful‑termination cause of action)