SHANNON M. BLICK v. ANN ARBOR PUBLIC SCHOOL DISTRICT, ANN ARBOR BOARD OF EDUCATION, SHONTA A. LANGFORD, DAWN LINDEN, DAVID A. COMSA, JEANICE KERR SWIFT, TANEIA GILES, and MIKE MADISON
Case No. 19-cv-12127
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
May 26, 2023
Gershwin A. Drain, U.S. District Court Judge
ECF No. 68, PageID.3042
I. INTRODUCTION
On July 20, 2019, Plaintiff Shannon M. Blick initiated this civil rights and employment discrimination action against Defendants Ann Arbor Public School District (“AAPSD” or “District“) and Ann Arbor Board of Education (“AABOE“), as well as Defendants Shonta A. Langford, Dawn Linden, David A. Comsa, Jeanice Kerr Swift, Taneia Giles, and Mike Madison (collectively “Individual
Presently before the Court is Defendants’ Motion for Summary Judgment, filed on December 5, 2022. See
II. BACKGROUND
A. Factual Background
1. Blick‘s hiring and duties
Blick began her employment with the AAPSD and AABOE as the principal of Lawton Elementary School (“Lawton“) in September 2013.
With respect to Lawton‘s budget, Blick described her responsibilities as folllows: “determining how to allocate funds,” “monitor[ing] what is being spent and how much money is left,” and “ensur[ing] that money is spent appropriately.”
2. Blick recommends a contract custodian for concurrent work as a lunch period supervisor
Willie Johnson began working at Lawton as a subcontracted custodian through ABM in 2014.
Blick testified that, in an effort to hire and retain more lunch hour staff, Dawn Linden, AAPSD‘s Executive Director for Elementary Education and then Assistant Superintendent of Teaching and Learning, approved a plan for elementary school principals to hire any person working in the school in a different capacity as a lunch period supervisor (“LPS“) and to permit LPS‘s to work additional hours in the school.
3. Discovery that Johnson was being paid for concurrent work
Blick testified that she and Brown were unable to access and review Lawton‘s lunch hour account until February 2019 due to technical issues.
4. Initial AAPSD Investigation
Linden relayed the information to Langford, and they began an investigation. They interviewed Blick; Giles; Johnson; Brown; Dante Watson, Lawton‘s former assistant principal, and Williams in late February 2019.2 See
During her interview, Blick explained that she did not review Johnson‘s timesheets before singing them and thus did not notice that he was claiming
Blick‘s testimony at her deposition confirmed that Brown had informed her that Johnson was claiming too many hours prior to February 2019, but she indicated that Brown included these complaints with several issues regarding other lunch hour staff.
5. Blick is placed on administrative leave
Linden and Langford decided to place Blick on paid administrative leave while the investigation was pending due to the amount of money Johnson had acquired and Blick‘s failure to monitor the Lawton budget.
Langford and Linden met with Blick and her Union Vice President, Jason Skiba, on April 26, 2019 to hand-deliver a letter informing Blick that she was being placed on leave.
[Y]ou are being placed on an administrative paid leave of absence effective immediately, pending an investigation of allegations of potential fraud and misconduct.
In the meantime, you are directed not to contact any students, parents or staff regarding this matter.
. . . [Y]ou are also directed not to enter onto District buildings or property, with the exception of matters that involve your children (ie. Transporting to/from school and special events) . . . .
Should you have any questions please do not hesitate to contact me directly.
Id. at PageID.1697. Linden testified that she explained to Blick that “being on administrative leave mean[t] that [Blick] no longer function[ed] as the principal of Lawton, so should not communicate about things regarding her principal role, or engage in decision making, or work-related functions.”
According to Linden and Skiba, during the April 26, 2019 meeting, Blick expressed concern about the effect of the administrative leave on her reputation and stated that she wanted to keep the circumstances private.
At some point, Blick discussed the April 26, 2019 Letter with Mike Madison, a former AAPSD principal and Blick‘s Union Representative.
6. Blick‘s leave is communicated to the Lawton Community
On May 1, 2019, Linden met with Lawton staff to inform them of Blick‘s leave. An audio recording of the meeting demonstrates that Linden told staff the details of the leave were “private matters.” See
The same day, Linden sent a letter to the Lawton Community.
The next day, Giles sent an email to Lawton teachers exрlaining how to convey Blick‘s leave to students.
Ms. Blick is going to be out of school and while she‘s gone, we will have a guest principal . . . . Sometimes people take time off from their jobs because they have to take care of other really important things. Whatever those things are, it‘s important to understand that they are private. You might see Ms. Blick when you are at the grocery store or here at school with Carson, Emily[,] and Lucas. It‘s great to say hello and let her know you miss her but we should stay away from questions out of respect for her privacy. Remember that Carson, Emily, and Lucas want to come to school and learn and play so let‘s stay focused on the fun of learning and being good friends by not asking questions of them either.
Id.
On May 3, 2019, a parent started a letter writing campaign, intending to send Linden 100 emails regarding Blick‘s positive impact on Lawton.
On May 6, 2019, Linden emailed Blick and Skiba, copying Langford, asking Blick to plan to meet with her and Langford the next day for “a follow up interview to the ongoing investigation.”3
Thus, on May 7, 2019, Blick, represented by Skiba, met with Linden and Langford.
Blick testified that Linden implied it was in Blick‘s best interest to stop the parents from speaking on her behalf or else the allegations of her affair with Johnson would be made public through the FOIA request of her personnel file; however, Blick conceded that she was not ordered to do anything.4
Skiba affirmed that Blick did not mention during the May 7, 2019 meeting, or tell him аt any other time, that she wanted to speak at the May 8, 2019 AABOE meeting.
8. AAPSD turns over its investigation to outside counsel and then the Ann Arbor Police Department
In late April 2019, Madison texted Blick, inter alia, recommending that she look for employment outside of the AAPSD while on her administrative leave because there appeared to be “a strong case” for her termination and if the
At some point, David Comsa, AAPSD‘s General Counsel, retained independent counsel, Collins & Blaha, to investigate the potential improper expenditure of public funds.
AAPD interviewed several individuals and reviewed several documents over the course of its investigation.
On June 20, 2019, MLive, a local Ann Arbor publication, published an article entitled “Mystery surrounds principal‘s leave from Ann Arbor elementary school.”
MLive published another article about Blick on July 22, 2019.
10. Blick files discrimination charges
On July 15, 2019, Blick filed a Charge of Discrimination with the Equal Opportunity Employment Commission (“EEOC“).
11. Blick‘s ability to participate in the Lawton Community while on leave
i. Blick‘s engagement with Lawton parents and staff away from the Lawton campus
During Blick‘s administrative leave, she regularly worked out with her friend and then Lawton teacher, Jinx Cooke, and other Lawton parents several times per week.
ii. Blick‘s engagement with the AABOE
On July 24, 2019 and again on August 14, 2019, Blick sent letters to Swift and Trustees of the AABOE outlining her grievances and demanding a name-clearing hearing.
iii. Blick‘s engagement with Lawton
Notably, in the affidavit Blick submitted in support of her opposition to Defendants’ earlier motion to dismiss, she stated that Defendants “forbid [her] to appear on Lawton premises, except for attending to [her] three children that attend Lawton.”
First, Blick was escorted off the premises on April 26, 2019, the day that she was placed on leave.
Third, on May 7, 2019, Blick‘s daughter (“E.B.“) went out to lunch with a friend and that friend‘s mother, who either did not properly sign E.B. out of the school or was not on the list of people allowed to take E.B. out.
Fourth, Blick was permitted to finish out the spring season as head coach of her children‘s soccer team, but someone else was given the head coach position the following fall.
Fifth, Blick was not permitted to attend the 5th grade graduation ceremony at the end of the 2018-2019 school year, even though her son performed at the event, because the ceremony was only open to parents of graduates. ECF No. 61-8, PageID.1487. Linden testified that this was a policy that had been instituted by Blick the year prior. Id. at PageID.1521. While Blick testified that she was singled out and any parent could attend the graduation ceremony, ECF No. 61-5, PageID.1334-44, an email sent by the choir director a few days before the ceremony stated that kindergarten “parents [were] not allowed to attend the performance, due to overcrowding with the 5th grade parents in attendance,” ECF No. 67-3, PageID.3002.
Sixth, Plaintiff was unable to enter the Lawton premises without first obtaining approval. See ECF No. 64-14, PageID.2407. However, during the 2019-2020 school year, due to thrеats made to Giles, Lawton had special security measures, including a security guard at the front door, another patrolling the outside of the building and the playground, and a visitor management system that involved presenting identification at the main office and receiving a visitor pass. ECF No. 61-23, PageID.1737; ECF No. 61-38, PageID.1793.
Ninth, on October 17, 2019, Blick was a parent volunteer during Lawton‘s Battle of the Books contest, in which her daughter participated. See ECF No. 61-43, PageID.1808; ECF No. 61-5, PageID.1332. In that capacity, Blick asked students questions about the books they had read. Id. However, a few days later, Langford sent Blick an admonishing letter because, the day she visited for Battle of the Books, Blick was “observed entering the music classroom with kindergarten students and holding one of the students” despite it not being a class in which her children were
12. The conclusion of the AAPD investigation
The AAPD investigation found that Blick and Johnson “engaged in common scheme to defraud the Ann Arbor Public Schools of over $25,000 which was ultimately paid to [Johnson] for work not performed.” ECF No. 61-15, PageID.1649. AAPD requested charges of embezzlement, larceny by false pretenses, and conspiracy. Id. However, the prosecutor only charged Johnson with false pretenses. Id. at PageID.1650. Johnson was arraigned on March 5, 2020. Id. He was ultimately convicted and ordered to pay restitution. ECF No. 61-5, PageID.1337.
13. The nonrenewal of Blick‘s administrative contract
On March 30, 2021, Langford issued Blick a “Notice of Consideration of Nonrenewal of Administrator‘s Contract.” ECF No. 61-48. The letter provided, inter alia, that:
The Board will be considering the nonrenewal of your administrator contract because of misconduct detrimental to the proper functioning and administration of your assigned school, including but not limited to, failing to properly safeguard District resourcеs after being put on notice of potentially fraudulent activity.
In particular, you authorized payment of money to a contract custodian at Lawton, who was also being paid by his employer for the same time. Along with your failure to monitor, you signed approximately eleven documents which authorized payment to the contract custodian for as much as four hours while he was also being paid by his employer for the same time.
Plaintiff requested to speak, and spoke, at an open AABOE meeting on April 28, 2021. See Board of Education Meeting 4/28/2021, CTN Video, https://ctnvideo.a2gov.org/CablecastPublicSite/show/4863?channel=1 [https://perma.cc/N77M-W82W] at 3:44:00. Swift‘s presentation to the AABOE focused solely on Blick‘s role as a fiduciary of public funds and her failure to monitor the Lawton budget after being put on notice that Johnson was claiming excessive time; it did not mention her alleged relationship with Johnson. Id. Blick argued, inter alia, that Johnson was claiming excessive time before she became responsible for approving timesheets, she thought purchasing a time clock for the 2017-2018 school year had fixed the problem, and she trusted the timesheets she was given to sign were accurate. Id. Both Blick and Swift answered questions from the AABOE Trustees. Id. The AABOE Trustees unanimously voted not to renew Blick’ contract at the meeting. Id. at 04:25:00. On April 29, 2021, Swift issued Blick a letter informing her of the nonrenewal of her administrative contract. ECF No. 61-49.
On August 24, 2021, pursuant to her tenure rights, the AAPSD rehired Blick as an elementary school teacher at the Virtual Village. ECF No. 61-7, PageID.1416;
B. Procedural Background
Plaintiff‘s Amended Complaint alleges claims against all Defendants under
On February 2, 2021, Judge Dawkins Davis granted in part and denied in part Defendants’ Motion to Dismiss (ECF No. 16), retaining only Plaintiff‘s claims for freedom of speech (Count II), freedom to petition (Count III), and freedom of assembly (Count IV) under the
As such, the only claims still pending are Plaintiff‘s claims under
A. Legal Standard
“[T]he standard that a movant must meet to obtain summary judgment depends on who will bear the burden of proof at trial.” Pineda v. Hamilton Cty., Ohio, 977 F.3d 483, 491 (6th Cir. 2020) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Thus, if the nonmoving party will bear the burden of proof on a claim, the movant “need only demonstrate that the nonmoving party has failed to ‘make a showing sufficient to establish the existence of an essential element’ of that claim.” Id. (quoting Celotex, 477 U.S. at 322). Thereafter, “the nonmoving party
B. Discussion
As the parties agree, to state a claim under
1. Freedom of Speech - “prior restraint” claim (Count II)
Plaintiff alleges that Defendants impinged upon her freedom of speech by interfering with her freedom to speak on issues of public concern by filing a suit in a court of law; freedom to attend school board meetings and voice her opinions on matters of public concern on public property, freedom from compulsion to speak a
Compelled speech and compelled silence claims are analyzed the same under the
As a preliminary matter, it is not clear how Defendants prohibited Plaintiff from filing a law suit--indeed, she does not appear to have had any problems filing the instant action or making FOIA requests from the AAPSD or AABOE. Plaintiff, in her Response, does not address Defendants’ argument that thеse allegations are unsupported by the record, see ECF No. 64, and thus effectively concedes the issue, Degolia v. Kenton Cnty., 381 F. Supp. 3d 740, 759 (E.D. Ky. 2019) (citing Rouse v. Caruso, No. 06-cv-10961-DT, 2011 WL 918327, at *18 (E.D. Mich. Feb. 18, 2011), report and recommendation adopted, 2011 WL 893216 (E.D. Mich. Mar. 14, 2011)); see also Haliburton v. City of Ferndale, No. 2:21-CV-10864-TGB-APP, 2023 WL 581651, at *10 n.3 (E.D. Mich. Jan. 27, 2023). Moreover, the
Likewise, the Court acknowledges that there is ambiguity as to whether Plaintiff was, in fact, restrained from attending the May 8, 2019 AABOE meeting. Indeed, Plaintiff testified that nobody ordered her not to attend or to stop others from attending the meeting, but that Linden heavily implied it would be in her best interest to do so. ECF No. 61-5, PageID.1327. Assuming arguendo that Plaintiff‘s testimony is accurate, it is not at all clear that discouraging an employee from speech, without prohibiting the speech, is sufficient to support a prior restraint claim. See Kesterson v. Kent State Univ., 967 F.3d 519, 526 (6th Cir. 2020) (affirming district court‘s grant of summary judgment on prior restraint claim where defendant-coach told plaintiff-player not to tell anyone about sexual assault because a prior restraint is an “administrative or judicial order that forbids speech in advance” and “impose[s] a legal impediment” (cleaned up) (citations omitted)). However, the Court need not resolve this question. For the reasons discussed in Section III, Subsection B, Part 1,
Lastly, the Court addresses Plaintiff‘s several assertions that Defendants prohibited her “from communicating with Lawton parents, teachers or staff for any reason.” See e.g., ECF No. 64, PageID.1876. This allegation is belied by the record. As discussed in Section II, Subsection A, Part 11, Subparts i and iii supra, there is ample evidence of Plaintiff communicating and socializing with several Lawton parent, teachers, and staff in her capacity as both a parent of Lawton students and friеnd to people who were themselves Lawton teachers or staff. While a court should generally not make a credibility determination or otherwise weigh evidence when ruling on a summary judgment motion, Anderson, 477 U.S. at 255, an exception exists where “opposing parties tell two different stories, one of which is basically contradicted by the record, so that no reasonable jury could believe it.” Scott, 550 U.S. at 380.
Additionally, such a broad restriction, if it existed, would necessarily involve matters that are not of public concern, and are thus not entitled to
i. The restricted speech implicated Plaintiff‘s role as a private citizen.
“[W]hen public employees make statements pursuant to their offiсial duties, the employees are not speaking as citizens for
Defendants argue that “Plaintiff‘s desired speech would either be made pursuant to her official duties or would not address matters of public concern.” ECF No. 67, PageID.2993. The April 26, 2019 Letter directed Plaintiff “not to contact any students, parents, or staff regarding” the investigation into her potential fraud and misconduct. ECF No. 61-20. Although, Plaintiff would have regularly communicated with students, parents, and staff pursuant to her duties as principal of Lawton, the restricted speech was not the type in which Plaintiff would have usually engaged during the course of her employment. Indeed, Defendants imposed the restriction on Plaintiff as they placed her on administrative leave, when she would necessarily not have been engaging in her official duties as principal of Lawton. See Westmoreland, 662 F.3d at 719 (“Nothing in the record supports the claim that plaintiff‘s expression was made pursuant to a task that was within the scope of his official duties.“); see also Holbrook, 658 F. App‘x at 284 (“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee‘s duties, not whether it merely concerns those duties.” (quoting Lane v. Franks, 573 U.S. 228, 240 (2014))). Because of this, the Court concludes that the restricted speech implicated Plaintiff‘s role as a private citizen.8
ii. The restricted speech addressed a matter of public concern.
As the Sixth Circuit has explained:
“Whether an employee‘s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S. Ct. 1684. Speech which can be “fairly considered as relating to any matter of political, social, or other concern to the community” touches upon matters of public concern. See id. at 146, 103 S. Ct. 1684. Absent unusual circumstances, a public employee‘s speech dealing with “matters only of personal interest” is not afforded constitutional protection. See id. at 147, 103 S. Ct. 1684. However, mixed questions of private and public concern, where the employee is speaking both as a citizen as well as an employee, can be protected, see Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000), such that “if any part of an employee‘s speech, which contributes to the [disciplinary action], relates to a matter of public concern, the court must conduct a balancing of interests test as set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L.Ed.2d 811 (1968).” Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412 (6th Cir. 1994) . . .
The April 26, 2019 Letter directed Plaintiff “not to contact any students, parents, or staff regarding” the “investigation of allegations of potential fraud and misconduct.” ECF No. 61-20. Like Judge Dawkins Davis did at the motion to dismiss stage, the undersigned finds that “Blick‘s restricted speech concerns both private and public matters.” Blick, 516 F. Supp. 3d at 725. The Court recognizes that Plaintiff‘s communications about her leave and the investigation necessarily involve a personnel dispute and that her motive in speaking about these topics would have been to defend herself. Nevertheless, the context of the restricted speech--the employment status of a public school administrator--is important to the parents and children of the Lawton Community. Id. at 726 (citing Lewis v. Harrison Sch. Dist., 805 F.2d 310, 314 (8th Cir. 1986); Piver v. Pender Cnty. Bd. of Educ., 835 F.2d 1076, 1080 (4th Cir. 1987)). Additionally, the content of the restricted speech--the
Farhat, on which Defendants rely to argue the restricted speech did not address a matter of public concern, ECF No. 61, PageID.1232, does not compel a different finding. The plaintiff-appellant in Farhat was a school custodian with a history of hostile communications directed at school district employees and union affiliates. 370 F.3d at 584. He received several warnings and other discipline for this behavior, which he usually responded to via letter that was directed at the individuals with whom he had a disagreement and primarily consisted of “personal opinions and conclusions” as well as various insults. Id. at 584-85. In the incident giving rise to his lawsuit, the Farhat plaintiff was passed over for a job and threatened the coworker whom he held responsible. Id. at 585. The plaintiff was then suspended with pay while the incident was investigated and instructed by letter not to speak to other employees during his suspension. Id. at 586. The plaintiff
Notably, the public concern analysis in Farhat is with respect to a
Furthermore, that the restricted speech involved matters of public concern is evidenced by the interest and activity Plaintiff‘s placement on administrative leave garnered. Parents organized to speak at the May 8, 2019 AABOE meeting about Plaintiff‘s administrative leаve. A local publication wrote an article about the “mystery” surrounding Plaintiff‘s departure after she had been gone from Lawton about two months and another article about the lawsuit she initiated regarding her departure. Most tellingly, Defendants themselves developed strategies to inform Lawton staff, parents, and students about Plaintiff‘s leave so as to reduce concern
iii. Pickering balancing favors Defendants
However, that Plaintiff was restricted from speaking as a private citizen on a matter of public concern is not dispositive. Next the Court must conduct the Pickering balancing test to determine “whether the government had an adequate justification for treating the employee differently from any other member of the public’ based on the government‘s needs as an employer.” Lane, 573 U.S. at 242 (quoting Garcetti, 547 U.S., at 418). Pickering analysis weighs “the employee‘s interest in ‘commenting upon matters of public concern‘” against “‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.‘” Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) (quoting Pickering, 391 U.S. at 568).
When striking a balance between the parties’ respective interests, we “consider whether an employee‘s comments meaningfully interfere with the performance of h[er] duties, undermine a legitimate goal or mission of the employer, create disharmony among co-workers, impair discipline by superiors, or destroy the relationship of loyalty and trust required of confidential employees.” Williams v. Kentucky, 24 F.3d 1526, 1536 (6th Cir. 1994).
Stinebaugh v. City of Wapakoneta, 630 F. App‘x 522, 529 (6th Cir. 2015). The Court also considers whether the speech “interferes with the regular operation of the
Here, Plaintiff describes her interests as “speaking on pаrental, student and educational matters, as well as commenting on the improper actions of Defendants.” ECF No. 64, PageID.1879. Although Plaintiff defines the topics she desired to speak on broadly, for the purposes of
The first Pickering consideration—whether the restricted speech would have interfered with Plaintiff‘s job duties—favors Plaintiff. As discussed in Section III, Subsection B, Part 1, Subpart, i supra, Defendants imposed this restriction on Plaintiff at the same time that they placed her on administrative leave. Because
With respect to the second Pickering consideration, the Sixth Circuit has recognized that conducting an internal investigation into potential misconduct, without interference from employees, is a legitimate goal or mission of a public employer. See Farhat, 370 F.3d at 598 (finding prior restraint “was reasonable in light of the employer‘s interest in completing its investigation and in protecting the workplace.“). In Farhat, the Sixth Circuit case most similar to the one at bar, the Sixth Circuit found that Pickering balancing favored the defendant-school district where the school district‘s interest was in investigating the plaintiff‘s conduct towards a coworker and the prior restraint was limited to the duration of the investigation into the plaintiff-custodian, only restricted him from speaking to his coworkers, and was geared toward preventing disruption of the workplace and interruption of the investigation. Id.
Here too, Defendants interest was in investigating Plaintiff for her potential misconduct. The Court notes that the restriction imposed on Plaintiff was broader in some ways than the restriction in Farhat—specifically, the restriction here was longer because Plaintiff‘s administrative leave ended up being much longer than the
The Sixth Circuit also concluded Pickering balancing favored a public employer‘s interest in conducting an internal investigation, without interference from employees, in Gillis v. Miller. 845 F.3d at 688. There, the Sixth Circuit held that “jail officials have a compelling interest in preventing their employees from advising other employees to delay or obstruct [an] investigation” into potential drug trafficking in the jail that “outweigh[s] any freedom of speech interests [p]laintiffs may have had in posting” a memorandum about union members’ rights with respect to the investigation. Id. at 687-88. The rights outlined in the memorandum focused on the ability to demand a union representative be present at any questioning. Id. at 682. In finding for the defendants, the Gillis Court noted the importance of investigating drug smuggling in jails, which “could cause harm or loss of life to the numerous staff and inmates,” particularly when facilitated by jail officials. Id.
The last few Pickering considerations can be generally consolidated as whether the restricted speech will cause workplace disruptions. See Connick, 461 U.S. at 152. Where the public employer does not provide evidence of actual disruption, the court “must assess whether the employer could reasonably predict that the employee speech would cause disruption[.]” Gillis, 845 F.3d at 687 (citations omitted). Here, the Court finds Defendants could have reasonably predicted Plaintiff‘s restricted speech would have been disruptive for at least two reasons.
First, Defendants could have reasonably predicted that Plaintiff speaking negatively about her placement on administrative leave could have severely impacted Lawton‘s operations, i.e., providing an education to its students. The Court takes judicial notice of students in the Eastern District of Michigan protesting several
Second, it appears that Plaintiff intended to accuse Giles of orchestrating her placement on administrative leave because Giles “coveted [Plaintiff‘s] position as Principal of Lawton,” see, e.g., ECF No. 1, PageID.6, and/or imply that Giles was in charge of the lunch period and thus at fault for Johnson‘s actions, see, e.g., ECF No. 64, PageID.1868. In Farhat, the Sixth Circuit recognized that public employers may, consistent with the
[t]he reason the governor may fire [a robustly critical high-ranking] deputy is not that this dismissal would somehow be narrowly tailored to a compelling government interest. It is that the governor and the governor‘s staff have a job to do, and the governor justifiably feels that a quieter subordinate would allow them to do this job more effectively.
Lastly, although not necessary, Farhat, 370 F.3d at 594 (citing Waters, 511 U.S. at 675), the Court determines the restriction was narrowly tailored to accomplish a legitimate goal. For example, in Baar v. Jefferson Cnty. Bd. of Educ., the defendant-school district prohibited the plaintiff-employee from contacting a coworker whom he had harassed in the past for any reason. 311 F. App‘x at 820.
As such, the Court concludes that Pickering balancing favors Defendants. The cases on which Plaintiff relies do not support an alternative result. First, in Myers v. City of Centerville, Ohio, the defendants’ interests amounted to the ability to make personnel decisions without criticism from employees, particularly employees from a different department than the one being discussed. 41 F.4th at 764. In finding the defendants failed to meet their “minimal” burden under
Accordingly, the Court holds that the Individual Defendants are entitled to summary judgment on Plaintiff‘s
Plaintiff also alleges that Defendants retaliated against her for engaging in constitutionally protected acts and opposing their illegal conduct by constructively terminating her employment and filing “a false and unsubstantiated police report” about her. ECF No. 14, PageID.121.
To establish a prima facie case of
(1) the plaintiff engaged in protected conduct [i.e., constitutionally protected speech]; (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 conduct.
Myers v. City of Centerville, Ohio, 41 F.4th 746, 759 (6th Cir. 2022) (alteration in original) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc)). For Plaintiff to establish that her speech is protected under the
For the reasons discussed in Section III, Subsection B, Part 1 supra, the Court finds that the restricted speech touched on a matter of public concern but that Plaintiff‘s interest in the speech did not outweigh Defendants’ interests in investigating the potential misappropriation of the lunch hour budget without interference or in minimizing disruptions at Lawton. Because Pickering balancing favors Defendants, Plaintiff cannot establish that she engaged in constitutionally protected conduct and thus cannot establish a retaliation claim.
However, assuming arguendo that Plaintiff was prohibited from engaging in constitutionally protected speech, she cannot, as a matter of law, establish the remaining elements of a retaliation claim. Plaintiff argues that Defendants subjected her to the following adverse actions: filing a police report days after she filed her Complaint, blocking Plaintiff from coaching her children‘s soccer team, prohibiting
Three of these examples do not constitute adverse actions for purposes of a
Furthermore, even if blocking Plaintiff from being the head coach of children‘s soccer team constitutes an adverse action, Plaintiff cannot establish causation. “A
Finally and most importantly, even if Plaintiff established a prima facie case of retaliation with respect to the non-renewal of her administrative contract and the two months for which she received delayed payment,12 there is still ample evidence these things would have happened absent any protected speech in which Plaintiff may have participated. Plaintiff was placed on administrative leave pending an investigation into allegations of potential fraud and misconduct. The notice indicating Defendants were considering not renewing Plaintiff‘s administrative contract informed her that it was because she had “fail[ed] to properly safeguard District resources after being put on notice of potentially fraudulent activity.” Plaintiff had the opportunity to dispute the nonrenewal during the April 28, 2021 AABOE meeting. She was represented by counsel and proffered several reasons why her culpability in Johnson‘s actions was mitigated. However, she admitted that 1) Brown told her during the 2015-2016 school year that Johnson was claiming excess time, 2) as principal, she had ultimate responsibility over Lawton‘s budget,
Accordingly, the Court holds that the Individual Defendants are entitled to summary judgment on Plaintiff‘s
3. Freedom of Association (Count IV)
The United States Constitution protects two different types of “freedom of association:” a right of intimate association and a right of expressive association. Roberts, 468 U.S. 609, 617-18 (1984). The freedom of intimate association protects
Count IV of the Amended Complaint rеfers only to the freedom of expressive association. See ECF No. 14, PageID.124 (“Ms. Blick‘s aforementioned rights to attend school board meetings and voice her opinions on matters of public concern on public property and to speak freely with members of the AAPSD community is constitutionally protected.“). The Sixth Circuit has long held that “[s]tate employee‘s freedom of expressive association claims are analyzed under the same standard as state employees’ freedom of speech claims.” Akers v. McGinnis, 352 F.3d 1030, 1036 (6th Cir. 2003) (citing Boals v. Gray, 775 F.2d 686, 692 (6th Cir. 1985)); see also Baar, 311 F. App‘x at 822.
In support of her expressive association claim, Plaintiff asserts that Defendants restricted her from attending the May 8, 2019 AABOE meeting and discussing matters of public concern involving Lawton education and student issues with parents, students, and teachers. ECF No. 64, PageID.1883. As discussed in Section III, Subsection B, Part 1 supra, it is not clear that Defendants, in fact, prohibited Plaintiff from attending the May 8, 2019 AABOE meeting, as opposed to
Nevertheless, for the reasons discussed in Section III, Subsection B, Part 1, subpart iii supra, Defendants’ interests in conducting their internal investigation without interference and operating Lawton without disruptions outweighed Plaintiff‘s interest in discussing her placement on administrative leave or the investigation either at the May 8, 2019 AABOE meeting or with unidentified Lawton students, parents, and staff. To the extent Plaintiff argues she was restricted from associating with Lawton students, parents, and staff regarding issues unrelated to her leave or the investigation, such assertions are belied by the record. For example, in her May 8, 2019 email to Plaintiff, Cooke, a Lawton teacher and Plaintiff‘s friend, explicitly noted that she “had heard from Dawn Linden that communication with [Plaintiff] was acceptable when it involved her children.” ECF No. 61-40, PageID.1801. More importantly, such associations would not involve activities
Additionally, although she does not allege a right to intimate association in Count IV of her Amended Complaint, Plaintiff contends that the evidence establishes that Defendants interfered with her right to intimate association by restricting her access to her children. See ECF No. 64, PageID.1882. Plaintiff cannot, in response to a motion for summary judgment, assert a claim that she failed to allege in her Complaint or Amended Complaint. See Tucker v. Union of Needletrades, Indus. & Textile Emps., 407 F.3d 784, 787-89 (6th Cir. 2005) (affirming district court‘s refusal to consider claim asserted for the first time in response to a motion for summary judgment because the plaintiff failed to plead the claim and the defendants did not have notice of the claim (citations omitted)). Thus, Plaintiff‘s freedom of intimate association claim fails because she never presented it prior to her response to Defendants’ Motion for Summary Judgment.13
Nevertheless, the Court notes that Defendants would be entitled to summary judgment on the merits of the intimatе association claim as well. “Government action that has a ‘direct and substantial influence’ on intimate association receives heightened review.” Beecham v. Henderson Cnty., Tennessee, 422 F.3d 372, 376 (6th Cir. 2005) (quoting Anderson v. City of LaVergne, 371 F.3d 879, 882 (6th Cir. 2004)). However, government action is deemed to have “direct and substantial burdens” on intimate association
only where a large portion of those affected by the rule are absolutely or largely prevented from [forming intimate associations], or where those affected by the rule are absolutely or largely prevented from [forming intimate associations] with a large portion of the otherwise eligible population of [people with whom they could form intimate associations].
Id. (quoting Anderson, 371 F.3d at 882). Lesser interferences on the right to intimate association are subject to rational basis review. Hartwell v. Houghton Lake Cmty. Sch., No. 17-CV-10678, 2018 WL 925848, at *10 (E.D. Mich. Feb. 16, 2018) (citations and internal quotation marks omitted), aff‘d on other grounds, 755 F. App‘x 474 (6th Cir. 2018).
Plaintiff provides the following examples of Defendants restricting her from associating with her children: she was unable to attend the choir concert on April 26, 2019, attend the fifth-grade graduation ceremony, continue as the head coach of her children‘s soccer team, serve as a room parent in Wesley‘s classroom, administer allergy medication to her son at school, or attend to her children at Lawton without notice and permission. ECF No. 64, PageID.1883. These constitute lesser interferences with Plaintiff‘s right to intimately associate with her children as even Plaintiff testified that she was still able to attend several events for her children (and Plaintiff was still able to associate with them outside of Lawton). See ECF No. 61-5, PageID.1344 (“Then аfter [May 2019], I began to do more parental things that I knew I had a right to do.“); ECF No. 25-2, PageID.664 (stating Defendants “forbid [Plaintiff] to appear on Lawton premises, except for attending to [her] three children that attend Lawton“).
The Court finds that there are plausible policy reasons for each of the examples Plaintiff provides. Notably, Plaintiff does not allege, nor is there any evidence in the record to establish, that Defendants explicitly prohibited her from attending the concert on April 26, 2019—the day that she was placed on
Although Plaintiff tries to frame them differently, on the evidence before the Court, the other examples are of broad policies that were applied to Plaintiff as opposed to her being singled out. The music director asked parents of students in the choir not to attend the fifth-grade graduation ceremony to ensure there was enough space for families of fifth graders. Additionally, Plaintiff was not permitted to be the head soccer coach because she failed to fill out the paperwork for the position by the deadline. She was, however, able to serve as the assistant soccer
Accordingly, the Court concludes that the Individual Defendants are entitled to summary judgment on Plaintiff‘s freedom of association claim(s).
4. Official capacity claims
Local governments cannot be sued under
Here, Plaintiff asserts that the “AAPSD and AABOE maintained and tolerated municipal policies and customs of putting administrators and employees on administrative leave as a pretext to deprivе them of their constitutional rights while AAPSD and AABOE conducted sham investigations.” ECF No. 64, PageID.1886. She also asserts that “these policies were acted on and enforced by Swift, Langford and Linden, who were officials of AAPSD and AABOE who had decision making authority on behalf of AAPSD and AABOE.” Id. at PageID.1887.
To the extent Plaintiff intends to establish municipal liability through the actions of officials with final decision-making authority, her claims must fail. For all the reasons discussed in Section III, Subsection B, Parts 1, 2, and 3 supra, the Court has determined that the Individual Defendants did not violate Plaintiff‘s First (or Fourteenth) Amendment rights, so Plaintiff cannot rely on their conduct to establish municipal liability. See Vereecke, 609 F.3d at 404 (citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)).
Likewise, to the extent Plaintiff seeks to establish municipal liability through a custom-of-tolerance theory, her claims must also fail. “A ‘custom’ must be so permanent and well settled as to constitute a custom or usage with the force of law.” Vereecke, 609 F.3d at 403 (quoting Monell, 436 U.S. at 691). Thus, “a custom-of-tolerance claim requires a showing that there was a pattern” of “similar”
Here, other than conclusory allegations and her own placement on administrative leave, Plaintiff provides only one example of another administrator being subjected to a “sham investigation” and placed on administrative leave: former Slauson Middle School Principal Rick Weiler. ECF No. 64-2, PageID.1902–03. However, Weiler affirmed that he “voluntarily retired as the Principal of Slauson Middle School” and during his employment with the AAPSD, he “ha[d] never been placed on paid administrative leave.” ECF No. 67-8, PageID.3038. Thus, there is only one example of the allegedly unconstitutional policy in the record before the Court. Plaintiff cannot “infer a [district]-wide policy based solely on one instance of potential misconduct.” Thomas, 398 F.3d at 432 (citing Monell, 436 U.S. at 694). Indeed, it is not clear that she could establish a custom-of-toleranсe claim with even two examples. See Beard v. Whitmore Lake Sch. Dist., 244 F. App‘x 607, 613 n.3 (6th Cir. 2007) (“Two incidents of unconstitutional [conduct] over the course of five months, does not demonstrate behavior ‘so permanent and well settled as to constitute a custom or usage with the force of law.‘” (quoting Monell, 436 U.S. at 691)).
Lastly, Plaintiff makes passing reference to the AAPSD and AABOE‘s failure to train or supervise their employees. See ECF No. 64, PageID.1888. This too is
Accordingly, the Court concludes that the AAPSD and AABOE are entitled to summary judgment on Plaintiff‘s municipal liability claims.
5. Attorneys’ Fees and Costs
Finally, Defendants argue they are “entitled to an award of attorneys’ fees and costs under
As Judge Dawkins Davis explained:
The award of fees to a prevailing defendant is entrusted to the court‘s sound discretion, but “[a]n award of attorney‘s fees against a losing plaintiff in a civil rights action is an extreme sanсtion, and must be limited to truly egregious cases of misconduct.” Jones v. Cont‘l. Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) (citing Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 422 (1978)). As the Supreme Court explained in Christiansburg:
In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one‘s belief that he has been the victim of discrimination, no matter how meritorious one‘s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
. . . Hence, a plaintiff should not be assessed his opponent‘s attorney‘s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.
Application of these standards requires inquiry into the plaintiff‘s basis for suing. Smith v. Smythe-Cramer Co., 754 F.2d 180, 183 (6th Cir. 1985). Awards to prevailing defendants will depend on the factual circumstances of each case. Id. “[W]here no evidence supports the plaintiff‘s position or the defects in the suit are of such magnitude that the plaintiff‘s ultimate failure is clearly apparent from the beginning or at some significant point in the proceedings after which the plaintiff continues to litigate.” Id.
ECF No. 31, PageID.814–16.
The Court acknowledges that most of Plaintiff‘s claims were dismissed at the motion to dismiss stage for failure to state a claim or voluntarily dismissed after Defendants’ Motion for More Definite Statement (ECF No. 32). See ECF Nos. 31, 36. The Court also acknowledges that it is granting summary judgment on the remainder of Plaintiff‘s claims in this Opinion and Order. Nevertheless, the Court cannot conclude that Plaintiff‘s action “was frivolous, unreasonable, or without foundation.” Baker, 414 F. App‘x. at 780 (quoting Christiansburg, 434 U.S. at 421). Indeed, this Opinion and Order would not be nearly so long if Plaintiff‘s claims were completely without merit. To the extent Defendants argue they are entitled to attorneys’ fees and costs based on Plaintiff‘s counsel‘s conduct, the Court is unpersuaded. The deposition transcripts in this matter revealed a lack of professionalism and civility on both sides, and the Court will not sanction one party when both appear to be at fault. Nor were there, to the Court‘s knowledge, discovery abuses or other dilatory tactics sufficient to award sanctions. Thus, Defendants’ request is denied.
IV. CONCLUSION
Accordingly, for the reasons articulated above, IT IS HEREBY ORDERED that Defendants Motion for Summary Judgment (ECF No. 61) is GRANTED IN PART AND DENIED IN PART. Specifically, summary judgment is GRANTED with respect to Plaintiff‘s freedom of speech claims (Count II) and her freedom of associations claim(s) (Count IV) but DENIED with respect to Defendants’ request for attorneys’ fees and costs.
IT IS SO ORDERED.
/s/ Gershwin Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on May 26, 2023, by electronic and/or ordinary mail.
/s/ Amanda Chubb for Teresa McGovern
Case Manager