John Pilarowski v. MacOmb County Health Dept. And MacOmb County Board of Commissioners

nature, post ex facto punitive applicable. is prohibition argu make

Finally, appellants Chapter 2150 should invalidat

ment conjec policy. public Their against ed up is summed

ture-filled indepen following conclusion “[w]ithout agency ... contact judicial

dent citizens with poor but honest

these going machinery massive reject demoralizing one." be a bitter court noted the district argument,

ing this benefit change the Code was a individ public in that freed general prose facing and criminal from arrest uals parking infraction simple for a

cution re legislation are state the local and 'pro procedural with an exhaustive plete judg followed before must be

cess concluded that The court issue. will

ment guarantees criminal constitutional no

since issue, legis vie procedures attach rights providing for its within

lature of fines determination

administrative the district agree with

penalties. analysis. reasons, we foregoing conclude

For the the Con- not violate Chapter 2150 does judgment of Accordingly,

stitution. AFFIRMED. court is PILAROWSKI,

John Plaintiff-Appellant, McKeen, Bleakey Bleakley, & H. Thomas Detroit, (argued), P.C., G. Gross James HEALTH DEPT. COUNTY MACOMB Mich., plaintiff-appellant. Butzel, Long, Battista, Gust Robert J. Commissioners, Defendants-Appellees. (argued), Zile, Nelson Mark & Van Klein 86-1423. No. defendants-appellees. Mich., Detroit, Appeals, States United Circuit. Sixth LIVELY, Judge, Chief Before 13, March Argued Judge, WELLFORD, Circuit 15, 1988. Judge. March CELEBREZZE, Decided Circuit Senior Rehearing En Banc Rehearing and 12, 1988. April WELLFORD, Judge.

Denied Circuit discrimination employment is an This 42 U.S.C.

case, brought pursuant public Michigan new enacted a dis- State he was claimed which required extensive re- that an exercising Amend- health code his First charged for in Ma- structuring of the health services jury speech. right to ment freedom seq. 833.1101 et County. M.C.L.A. plaintiff, but comb in favor returned a verdict changes significant code made and The set the verdict aside new the district court funding of state and amount In the method judgment for the defendants.1 entered requir- county department, notwithstanding the health for the granting judgment large portions County to fund verdict, plain- ing found that Macomb the district court expenditures for- his of its health-related prove that tiff had failed to merly provided automatic had been custom on unconstitutional was based January In 1978 Ma- speech. Before state disbursements. free policy suppressing however, agency, County created an umbrella jury, comb submitting case to the (HSA), to Administration the defendants’ Health Services denied the district court the coun- of both Defend- centralize administration summary judgment. department department and its summary ty health in the motion ants maintained county creating In adjudica- mental HSA health. an administrative re- strengthen sought Relations administrative Michigan Employment tion of the generally, department into sources of the health precluded inquiry further Commission compliance provide the means for discharge un- and to Pilarowski’s the reasons for reporting requirements of estoppel principles. with additional der collateral an unsuccess- the new code. Plaintiff was position of director of applicant ful I. years next four several Over the HSA. being employed years after Some five positions were created new administrative in the Macomb assistant an administrative by persons filled other within HSA and plaintiff began Department, County Health trial, plaintiff At contend- than Pilarowski. editor,” writing to the which “letters were cre- positions some of these ed that newspapers. published in several local responsibilities. Plain- to reduce his ated critical of actions Many of the letters type same tiff continued to write the County Board of by the Macomb taken period of during the editor letters to Commissioners, governing body of the transition. depart- health county controlled the his plaintiff was a member of In 1981 Dr. Leland funding. January In ment bargaining committee as the union union’s Brown, supervisor, immediate Pilarowski’s county on collective bar- and the worked writing critical stop him advised county agreement. contended gaining contin- papers, Pilarowski to the but letters agreement for a news Dr. Brown July do so. On ued to during negotiations, and letters. blackout discharged plaintiff publishing plaintiff violated the blackout suit in state brought Plaintiff main- to the editor. Plaintiff another letter ultimately ordered reinstated agree- no such there had been tained that pay benefits. Pilarowski back publication and that at the time of the ment Brown, Mich.App. 257 N.W.2d attempted to work, county’s negotiator had plaintiff returned After purpose of for the sole impose blackout resigned. Plaintiff continued Dr. Brown writing. stopping his letter newspa- faultfinding sending letters pers. Commissioners, Dilber, testi- One of after the labor appar- fied a considerable time

After reinstatement in December negotiations had concluded responsibilities ently additional assumed discussion overheard an informal he temporary administrators under a series Commissioners, Beck two other between department. of the health brief, one.) County is parties stipulated footnote (See plaintiffs actually only defendant. termi- finding was not ever cisión (the he had Grove, only discussion activities, union Pilarowski) indicating because concerning nated heard gotten legitimate county “hasn’t had shown the Health noted that “there were yet,” but Pilarowski as a basis of its ac- budgetary rid of concerns Beck and Both this out.” ways to work findings, adminis- Among other tions. ever a conversation that such denied Grove record judge found that law trative “[t]he place. took a need for econ- that there was establishes County part of the ... omy on the pro- of HSA 1982 the director August In animosity towards of evidence of to a in staff avoid absence reductions posed several Department the elimination of in the ... budget deficit projected [Plaintiff’s [Plaintiff] occurred, reorgani- such a deficit County If it the result position] of Health. was law, and the Health violate state that the would inconceivable ... zation [and] its reserve Department had exhausted undertook County Board of Commissioners County Board The Macomb general funds. pretext in reorganization ... as extensive adopted the director’s of Commissioners Plaintiff eliminate order to [Plaintiff].” bud- the for a reduction recommendation findings AU challenge of the the did not lay-offs. necessitating get, to the Michi- appeal the MERC only permitted not the to do Department gan was courts as he was The Health state time at the county government procedure. Michigan branch under need and the budget crisis by the affected addition, grieved his dis- In During prior the in staff. reduction for provisions of the collective charge elimi- (1981-1982) positions were year Coun- bargaining agreement with Macomb Au- Department. Health in the nated economic found that the ty. arbitrator The 9, the of 16 to by a vote gust of 1982 discharge plaintiff’s given for reasons budget adopted a revised Commissioners and that and reasonable authentic Department of Health whereby a number Pilarowski’s no evidence to was lay-offs.2 designated for positions exercising for he was terminated claim that in the specific individuals No names rights. the arbi- At his First Amendment in the motion were mentioned department by presented hearing argument tration budget that would adopt an amended to intentionally that he had been plaintiff was Department. in the Health require lay-offs by through “concerted effort discharged only administrator Plaintiff was rid of him Employer get to lay- to this subjected activity.” J/A writing union letter employees were off; other affected activities, including the Proof of both bud- dental assistants. dentists between Commis- alleged brief discussion Commissioners, how- getary action Grove about Commissioner Beck and sioner person as a ever, not name Pilarowski did year more than a getting rid of Pilarowski of the reduction by eliminated reason to be occurred, termination half before the and a force. col- to arbitrator. presented was Pilarowski after a few months Within de- presented estoppel argument lateral abolished, and terminated, HSA was un- their claim that rested on fendants reconstitut- position never “plaintiff’s precluded further appealed MERC decision per- people or five now] ed ... four [are good cause to litigation respect or a in whole forming the tasks” which this discharge, plaintiff’s basis (Plain- assigned plaintiff. to part had been findings of supported further commencing 15). brief, p. Before tiff’s good cause there was arbitrator ap- present action Pilarow- discharge related to Michigan Em- pealed his made and statements ski’s letter (MERC). Relations ployment Committee negotiations. labor during prior a de- hearing, rendered MERC Following Grove vot- witness) lay-off requirement. Commissioner (plaintiffs vot- Dilber 2. Commissioner against the reduction. consequent ed budget adjustment and ed for the Board’s decision....” II. Healthy, Mt. (footnote U.S. at 97 S.Ct. at 576 omit- adopt Whether or not we ted). We are satisfied that the record fails should be collat- support plaintiff’s contention as to the erally estopped pursuing from his claim respect causation factor in this case with improper discharge of his because letter County Board’s decision. Pilarowski’s (as writing activities, we find did MERC evidence, given construction, a favorable arbitrator) proof and the was insufficient to demonstrate that plain- case is insufficient to establish that County possessed the improper mo- tiffs First Amendment activities were es- alleged approved tive when it tablished as a cause termination affecting Depart- cuts the Health the Macomb Commissioners. As- ment.3 suming alleged conversation did place Grove, fact take between Beck and Court has determined that commissioners, twenty-five of two more government may a local not be held liable year than a a half before termi- upon under 1983 based respondeat a su- place, nation took there is uncontradicted perior theory simply having employ- proof budget constraints and cutbacks employees may ee or who wrong. commit a necessary were and mandated in the See Monell v. New City Dep’t York of Department many depart- Health other Services, 658, 691, 436 Social U.S. 98 S.Ct. County August ments of Macomb in of 2018, 2036, (1978). 56 L.Ed.2d 611 1982,and that the Commissioners took bud- accordingly conclude district court getary specific action without reference to in granting was not error in by the individuals who would be affected judgment notwithstanding the necessary budget reductions. One of jury verdict. We reach this conclusion af- alleged the two commissioners to be at- reviewing ter light the evidence in the most tempting “get to rid” of voted plaintiff, including favorable to the the evi- against the policy reduction ordered. The of previous dence successful state by County action taken Board of Com- brought by against suit Pilarowski missioners, then, was to reduce the County, pro- his failure to attain specific plaintiff.

without reference to motions, reassignment removal or of some order for the Board of Commissioners to be job responsibilities, proof and the discharge, plaintiff liable for the must concerning alleged feelings adverse and ex- present proof credible that the decision to pressions of several Macomb offi- “by him was made reason of his against plaintiff. cials directed constitutionally protected exercise of First Amendment district court found that Healthy City freedoms.” Mt. had presented proof Doyle, Education v. 429 that “certain U.S. individuals of 274, 283-84, 568, 574, 97 S.Ct. 50 who were not named may L.Ed.2d as defendants” (1977); Sindermann, 471 Perry see also v. have been motivated to terminate his em 593, 597-98, 2694, ployment 408 U.S. 2697- reason writing of his letter 98, (1972). must, activities, 33 L.Ed.2d 570 Plaintiff they but that had not been the indeed, go carry policymakers might further and the burden to who bind the defend establish that his County by “conduct was a ‘substan- ant reason of their actions under or, words, put tial to init other Monell.4 The district court also cited Ben factor’— ‘motivating Slidell, 762, it was a factor’ in the City nett v. 728 F.2d 767 be, Cincinnati, 469, 12, although 3. It it is not for us 475 U.S. n. 106 483 issue, 1292, 12, to decide this that certain individuals as- (1986). S.Ct. n. 1300 89 L.Ed.2d 452 County may sociated with defendant Macomb requisite improper have acted with the animus County employ- 4. "Some individual Macomb respect with to Pilarowski’s termination. Plain- ees,” found, the district court "were offended establish, tiffs evidence was insufficient to how- writing Mr. Pilarowski’s letter activities and ever, Department that Health officials Hill seemingly sought employment to have his Lafferty acting employment pol- and/or icymakers Department Health terminated.” County. for Macomb Pembaur v.

1285 that a conclusion support to (1984), insufficient denied, 861 F.2d 735 Cir.), reh’g (5th adopting bud- in question action Board’s 3476, 1016, 105 S.Ct. denied, 472 U.S. cert. let- by Pilarowski’s was motivated get cuts this (1985), 612 L.Ed.2d 87 “get to or that desire activity, (the ter termi injury suffered ruling or a factor substantial him was rid” “fairly attrib be to shown nation) not Board’s decision. factor itself,” causative utable proper, liable held a lower If County could affirm, if the court’s even theory can superior this court respondeat “a ap- incorrect upon an based it had not concluded He liability.” Dandridge v. law. plication demonstrated been 471, 6n. 475-76 County poli- Williams, 397 U.S. [90 commissioners, who 6, 25 L.Ed.2d 1153, 491] n. any 1156-57 em delegated S.Ct. body, had cymaking Gowran, 302 U.S. Helvering v. (1970); au such ployee 157, 82 L.Ed. 154, 224] 238, S.Ct. 245 respect [58 to termination thority with in department, within given individual Celina, F.2d Pilarowski. 823 cluding v. Bank States United Cir.1986), disposition noted (6th 911, n. 5 aspect error no findWe Co. also Stelos (1986). See F.2d 1166 786 interpret decision, we court's Corp., Hosiery Motor-Mend by an taken that evidence hold (1935). See L.Ed. S.Ct. (not supervisor non-policymaking individual Co., Eby Const. K. v. Martin Neely considered to be defendant) L.Ed.2d S.Ct. U.S. Pilarow- case. the defendant act Corp., Press Lakes v. Great (1967); Howes to establish failed to have held was thus ski denied, cert. Cir.), (2d 1023, 1029 F.2d First his between link causal requisite the 74 L.Ed.2d 1038, 103 S.Ct. U.S. taken the and activities Amendment v. Grove Cansler (1982); Manufactur defendant, the cf. named the by Cir.1987), toas (6th Co., F.2d ing See Mt. of Board Commissioners. ap toor direct authority to this court’s Monell, supra. In supra, and Healthy, JNOV. of granting prove the support does record the view our the bud- used defendant that claim III. Pilarow- subterfuge to violate aas get cuts in the rever- no error find therefore rights. constitutional ski’s of insufficiency verdict jury the sal of were decision district if the Even motivating cause respect proof with indicated interpreted, as properly affecting Pila- cutback budgetary of suffi- that dissent, suggest to not find Furthermore, dowe while rowski. that support conclusion to cient evidence estop- collateral decide it individuals Board, not unnamed defendant per- defendants, arewe raised pel issue placed Department, Health within in this that suaded pretextu- aon lay-off indefinite on merit. has considerable respect not be would result basis, a different al his presenting of Plaintiff, process inter- view, dissent’s our In mandated. were defendants to MERC charge one,5 we but correct is pretation employment of violation of a guilty notwithstand- affirm would claimed evidence presented agreement, accept if we even verdict ing the him and hostility towards indi- previously As interpretation. De- reorganization and is crisis simply record cated, we find December, discus- the Back-Grove concluded, among other court district The unwilling to assume the Court sion] things: relationship. evidence, such carefully this examined Having also added). The law, (Emphasis it is a matter as finds a limited actions “unrelated against out the liability pointed to establish insufficient County denying employees" in simply of individual The number Macomb. County. against liability between superior any respondeat connection to demonstrate failed 1976; seeking added). to “si- [firing in (Emphasis events these responsibilities; diminishing job him; lence" however, concluded, pretextual basis for as we have partment constituted a that there discharge. “persuasive The AU found consider- no his evidence” of “associa- charge wrongful tion,” termi- ing plaintiffs no causation demonstrated between genuine was a economic “negative feelings” nation that there toward Pilarowski and an “absence of necessity for cutbacks layoff. and his While the arbitrator’s deci- Pilarowski. Plaintiff animosity” towards plaintiff’s sion not constitute a bar to finding appeal did not administrative raising similar issues under it § findings process. MERC under the strongly corroborates state MERC deci- occurred, violation that no contractual sion, Pilarowski, adverse which held the just for Pilarowski’s exist- cause lay-off justified to be a action. ed, discharge did not arise and that the out estoppel properly collateral issue is unappealed, may animosity, being estab- though us even before defendants did not preclusive effect of such lish a basis cross-appeal. They file a raised the issue Accountants, a decision. See Senior Ana- summary judgment in their motion for lysts Appraisers & Association v. may present ground an alternative 449, 458, Detroit, Mich. 249 N.W.2d judgment. of the district court (1976).6 124-25 Railway United States American Ex- addition, plaintiff grievance In filed a Co., 425, 435-36, press pursued discharge and it to arbi- over his 560, 563-64, 68 L.Ed. 1087 again, tration. Here in arbitration denying In the defendants’ collateral es- writing proclivity, went into his letter his toppel-based summary judg- feeling county officials resented this ment, the district principally court relied on activity and therefore hostile towards our University Elliott v. him, hostility brought and that this about Tennessee, (6th Cir.1985). 766 F.2d 982 improper discharge upon based exercise Elliott we held that unreviewed state ad- rights. constitutional arbitrator ministrative determinations should not be plaintiffs being claim as characterized given preclusive subsequent effect discriminatory puni- “layoff 1983 actions. The Court re- tive” reason of the exercise of his free- holding versed this in University Ten- public dom to make his criticism of Ma- Elliott, 788, nessee v. 478 U.S. 106 S.Ct. County policies. comb officials and their 3220, 92 Although L.Ed.2d 635 upon proof J/A 295. He relied the Dilber agreeing that unreviewed state administra- proof animosity as well as the about due to preclude tive determinations do not a trial activity, his union which was the same court, de novo of Title VII claims in federal proof presented jury in to the this case. Supreme the Court concluded that such Pilarowski relied on a claim of retaliation in may preclude determinations a second trial his claim the before arbitrator. Defend- of the same in issues federal court where position ants’ was that had failed the claims are based on the Reconstruction prove layoff improper.” that his “was rights statutes, including civil § plaintiffs assumed that arbitrator Resolution of this preclu- issue turns on the hostility may contentions about have had sive effect to which the determinations basis, stating some the nature “[f]rom appropriate would be entitled the state of the Grievanf s letter- extensiveness courts. 106 S.Ct. at 3225-27. alone, it must be assumed that recognized The district negative there was at least some court the level feelings quarters Michigan Supreme him in some toward Court had held in Sen- decided, Accountants, the administration.” He ior Analysts Appraisers & Fabricating estoppel proceedings. 6. Plaintiff Walker v. cites Wolverine eral effects of MERC Co., 586, Manufacturing & 425 Mich. 391 MERC decision in this case held that (1986), proposition discharged N.W.2d 296 that col- was not animosity for union or for activities may estoppel agency lateral not be accorded related to his We union activities. MERC, decisions such as that of of this cases did not render our case decision the instant Walker, however, upon application estoppel nature. was concerned with based of collateral event, Michigan principles the nature of a tory circuit court's statu- but indicated a remand may review function and did not involve collat- have been indicated.

1287 Detroit, granted because 399 Mich. verdict was v. Association county only the rather than (1976), sue unre- chose to 449, 121 249 N.W.2d Board of Com members MERC individual determinations factual viewed and, in or Health an missioners preclusive effect when entitled to are so, “identify the existence of doing failed to on the same court rests in a action state governmental policy pol and connect that However, district of fact. questions injuries he icy particular which suf this court’s Elliott decision felt that court identified a Id. This statement fered.” rule when the subse- required a different maintaining requirement court. brought in federal quent action municipality under section 1983. against a not the bene- did have The district court City Dept. York Social Monell v. New in El- decision Supreme Court’s fit of Services, 2018, U.S. in Polk v. Yellow or liott (1978). However, I 56 L.Ed.2d (6th Inc., System, F.2d 190 Freight majority court the district believe Cir.1986), the defendants’ it denied when the Monell or cus “policy misapplied have In Polk summary judgment. requirement in this case. tom” apply federal courts must ruled that we Michigan and other Accountants Senior B. estoppel-based dealing collateral cases In Monell Court overruled Id. at 193-94. preclusion. 167, 81 Pape, 365 U.S. S.Ct. Monroe grant not decided Had we (1961), as it held that insofar L.Ed.2d notwithstanding the verdict judgment among “per- governments are not local heretofore stat- the reasons warranted applies. 42 U.S.C. sons” § upon called ed, would have been we municipalities may sued holding that be court so that district effect a remand lim- Monell 1983 the directly under § es- reconsidered collateral might have liability to those situations where ited light of the authorities toppel issue pursuant to “official government acts local out. herein set reasons governmental “custom.” It policy” AFFIRM however, need clear, a “custom” made for defendants. of the approval formal received have decision-making authority municipal- Judge, dissenting. LIVELY, Chief hand, Supreme Court ity. the other On that a local determined seriously majority has I Since believe on a based held liable law, I re- important rule misapplied an simply superior theory for respondeat spectfully dissent. wrong. employee having who commits 690-95, 98 S.Ct. at 2035-38. Id., A. it did not stated Monell that The Court was that concludes majority The full contours of munici- “what address that- Pilarowski’s evidence insufficient may be.” Id. at liability under 1983 pal § estab activities “First Amendment 695, 2038. S.Ct. at 98 lished as a cause termination to ex- has continued p. Ante Commissioners.” liability municipal of plore contours However, that not basis 1284. City Inde- E.g., v. Owen Monell. since defend granting the the district court’s 1398, 622, 63 S.Ct. pendence, 445 U.S. 100 notwithstanding judgment motion ants’ for (an city (1980) council 673 action L.Ed.2d specifically district court the verdict. New- City liable); municipality evidence rendered sufficient there was found 247, Concerts, Inc., 453 U.S. port Fact v. conclusion that defendants’ “to (1981) 2748, 69 616 L.Ed.2d in 101 S.Ct. placed on plaintiff was Tuttle, 471 U.S. City v. (same); Oklahoma due to a deficit layoff definite (1985) 2427, 791 S.Ct. L.Ed.2d not plaintiff would pretextual and inadequate policy of (existence municipal but for letter have been fired miscon- inferred from may not be training Appendix at Joint 209E. activities.” v. officer); Pembaur single police a notwithstanding duct of judgment for motion an act of official tionably Cincinnati, 106 S.Ct. constitute^] 475 U.S. City of policy.” government (1986) (municipality 89 L.Ed.2d subject single act taken may be liable for requiring erred in court The district by those who directed of action to a course the existence of to demonstrate con- policy). The governmental establish policy where the custom unconstitutional since through all decisions sistent theme Amendment deprivation of First claimed liability municipal under Monell legisla- is that on an act of the rights was based municipal- of a only to acts county. case is sim- 1983 attaches This body of the tive § municipal acts of v. ity distinguished from Williams many respects ilar Valdosta, require (11th Cir.1982), not Liability does employees. F.2d 964 body of the governing district of the reversed the formal act the court where notwithstanding on actions of may judgment be based municipality; entry it court’s ap- or edicts Williams acts the court officials “whose verdict. other Monell policy.” in manner that an- represent applied official fairly peals said to 1298-99, quoting Pembaur, decision in Supreme Court’s ticipated at Monell, Pembaur. 98 S.Ct. at misapplied Monell and the district I believe court Since The district of Monell the sole Pilarowski was erroneous view in this case. progeny its motion granting the defendants’ of the for to an action basis pursuant terminated verdict, notwithstanding I authority of Macomb governing ultimate judgment of the reverse the would of Commissioners. County, its Board rein- directions to and remand with this was no doubt There could be court deter- unless that state the verdict employee. county, that of an act of the issue, mines, upon reexamination finding depend upon a Liability did erroneously denied the sup- policy of adopted a county had judgment on collateral summary motion Only four members speech. free pressing estoppel grounds. in Pembaur agreed on the the Court pos- must “policymaker” authority that a predicated liability is municipal sess when an official. How- single act of such

on the

ever, agreed to this statement: Justices six instance, doubted, for has ever

No one municipality may be liable

that a proper- single by its BRADLEY, for a decision Patsy Herself Behalf of On body Children, legislative ly constituted All Oth Her Minor —whether Situated, body Plaintiff-Appel taken similar Similarly had or not ers lant, do so in the past or intended to single even future —because consti- body unquestionably by such a AUSTIN, Capacity, Sec Official E. Allen poli- an act of official tutes Resources; retary Human Cabinet for cy. Bowen, Secretary and Otis omitted). (citations 106 S.Ct. at Services, Individually Human proper- of a that the acts Pembaur teaches Defendants-Ap Capacity, His Official necessarily body legislative ly constituted pellees. government policy. It is reflect official No. 87-5248. alleged viola- only constitutional when Appeals, municipal by the conduct of a United States Court is caused tion inquiry into the Circuit. separate Sixth employee that municipal policy or custom of a existence 28, 1988. Argued Jan. to determine whether order 21, 1988. Decided March properly employee can be the act of municipality itself. Under attributed test, single act of the Macomb “unques-

County Board Commissioners

Case Details

Case Name: John Pilarowski v. MacOmb County Health Dept. And MacOmb County Board of Commissioners

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 12, 1988

Citation: 841 F.2d 1281

Docket Number: 86-1423

Court Abbreviation: 6th Cir.