OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
Plаintiff Kevin Mercure commenced this suit on January 26, 1999, in Wayne County Circuit Court, State of Michigan, asserting various federal constitutional and state-law claims arising from his discharge as a police officer for Defendant Van Burén Township (the “Township”). Among other claims, Plaintiff alleges that his employment was unlawfully terminated in violation of the U.S. and Michigan Constitutions after it was discovered that he was having an affair with the estranged wife of a fellow Township police officer, Sergeant Fred Yono. On February 24, 1999, Defendants removed the case to this Court, citing Plaintiffs assertion of federal claims under 42 U.S.C. § 1983.
By motion filed on September 17, 1999, Defendants now seek summary judgment on Plaintiffs federal claims, arguing. Plaintiff responded to this motion on November 5, 1999, and Defendants filed a reply brief in further support of their motion on November 12,1999. 1
On January 18, 2000, the Court held a hearing on Defendants’ motion. Having reviewed the briefs and supporting materials submitted by the parties, and having considered the arguments of counsel at the January 18 hearing, the Court is now prepared to rule on this motion. This Opinion and Order sets forth the Court’s ruling.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. The Parties
Although the parties and their counsel have presented a lengthy record for the Court’s consideration, much of it consisting of irrelevant “background” information, rumors, unsupportеd allegations, and inadmissible hearsay, the relevant facts of this case are straightforward and largely undisputed. Plaintiff Kevin Mercure was employed by Defendant Van Burén Township, first as a reserve officer from Sep *817 tember of 1995 until July of 1996, and then as a fully certified police officer from November of 1996 until his discharge on or around July 16, 1998. In this suit, Plaintiff challenges this discharge, as well as the investigation leading up to it, on constitutional and other grounds.
Apart from the Township, also named as Defendants are Mark Perkins, the Township’s Director of Public Safety, Helen Foster, a Township supervisor, and Dennis Brooks, a sergeant on the Township police force. As the head of the Township’s police force, Defendant Perkins made the decision to discharge Plaintiff, and Defendant Foster upheld this determination. Defendant Brooks conducted the investigation that uncovered Plaintiffs relationship with the wife of Sergeant Yono.
B. The Events Leading to Plaintiffs Discharge
In December of 1997 or January of 1998, Plaintiff began a relationship with Sergeant Yono’s wife, Joanna Yono. 2 Plaintiff has testified that he first had sexual intercourse with Ms. Yono in late January or early February of 1998. At the time, Ms. Yono was estranged from her husband, and they subsequently divorced in February of 1999. Sergeant Yono has testified, however, that he still lived with Ms. Yоno until early July of 1998, and that he and his wife did not file for a divorce until November of 1998. (Defendants’ Motion, Br. in Support, Ex. A, Arbitration Hearing at 16-17.) 3
During this time, Plaintiff worked under Sergeant Yono on the day shift. According to Defendants, because of the relatively small size of the Township police force, consisting of Defendant Perkins, one lieutenant, four sergeants, and twenty-six officers, it was not uncommon for the sergeant in charge of a shift to be “on the road” with his officers.
On or around July 14, 1998, Defendant Brooks learned of Plaintiffs relationship with Ms. Yono from another officer, and apparently took it upon himself to investigate further. Accordingly, in the early morning hours of July 14, he drove to the address where Ms. Yono currently was residing, at a trailer park on Belleville Road. He was accompanied in this investigation by Officer Dolan, traveling in a separate vehicle, and eventually all four patrol cars on the night shift arrived at a parking lot across from Ms. Yono’s mobile home. The officers observed Plaintiffs car parked in the driveway in front of Ms. Yono’s residence, and Defendant Brooks and Officer Dolan took several Polaroid pictures of Plaintiffs vehicle.
Defendant Brooks then returned to the police station, and placed the photographs on the ledge of a blackboard in the squad room. He selected “the best picture out of the group,” placed it on the roll call table, and discarded the rest. (Defendants’ Br., Ex. A, Arbitration Hearing at 39.) Although Defendant Brooks testified that he left the picture on the table only long enough to go to the bathroom, (id. at 39-40), Plaintiff has testified that he was called later that day and told that the picture had been posted on a bulletin board in the department’s roll call room, with the caption, “754 is at 714’s half *818 unit — what’s up with that.” (Id. at ISO-51.) 4 Plaintiff further testified, however, that he did not actually see the pictures or caption on the bulletin board. (Id. at 172.)
That same day, at around 4:00 p.m., Plaintiff was called to the station to meet with Lieutenant Kenneth Brooks and the three sergeants other than Sergeant Yono. According to Plaintiff, Lieutenant Brooks informed him of “rumors” of his relationship with Ms. Yono, stated that it was Plaintiffs “personal business,” but expressed concerns for the safety of Plaintiff and Sergeant Yono and the liability of the department. (Id. at 154.) Defendant Brooks, Lieutenant Brooks’ brother, stated that “if it was [his] wife, he’d put a bullet in [Plaintiffs] head,” and that if Plaintiff needed backup, his “backup might not come.” (Id. at 154.) The officers also asked Plaintiff to end his relationship with Ms. Yono, but he replied that he would not. (Id. at 173-74.)
Plaintiff then was summoned to meet with Defendant Perkins. This meeting also was attended by Phillip Wakeford, the chief union steward. According to Plaintiff, Defendant Perkins asked whether he would be willing to end his relationship with Ms. Yono, and Plaintiff responded that he “wasn’t going to end it.” (Id. at 176.) Defendant Perkins then advised Plaintiff that he either had to resign or would be terminated, and he suspended Plaintiff without pay. The next day, July 15, 1998, Defendant Perkins again met with Plaintiff, and again gave Plaintiff the option of resigning or termination. 5
When Plaintiff refused to resign, Defendant Perkins informed him, by letter dated July 16, 1998, that his employment was being terminated. (Defendants’ Br., Ex. D.) In this letter, Defendant Perkins stated that Plaintiff had violated two rules of conduct governing the Township police force: Rule 7120.10.3, prohibiting “unprofessional conduct” which “discredits the officers and/or the department or which impairs the operation and efficiency of the department or the officer,” and Rule 7120.10.4, requiring officers to “maintain a level of moral conduct in their personal and business affairs which is in keeping with the highest standards of the law enforcement profession,” and prohibiting participation in “any incident involving moral turpitude which impairs [an officer’s] ability to perform as [a] law enforcement officer[ ] or causes the department to bе brought into disrepute.” (Id.) On September 3, 1998, Defendant Foster upheld Defendant Perkins’ decision to discharge Plaintiff. (Plaintiffs Response Br., Ex. 13.)
C. Procedural Background
Plaintiff brought this suit on January 26, 1999 in Wayne County Circuit Court, State of Michigan. His Complaint includes eight counts: (1) violation of his rights under the U.S. and Michigan Constitutions of free association and privacy; (2) violation of his state and federal constitutional rights of due process; (3) municipal liability for these constitutional violations, by virtue of the actions of the two Defendants allegedly holding policy-making positions, Defendants Perkins and Foster; (4) a state-law claim of wrongful discharge; (5) a state-law claim of discharge in violation of public policy; (6) a state-law claim of assault and *819 battery against Defendant Perkins, arising from the incident following their July 15, 1998 meeting; (7) a state-law claim of intentional infliction of emotional distress; and (8) civil conspiracy to violate Plaintiffs constitutional rights. 6 The principal basis for Plaintiffs federal constitutional claims is that Defendants improperly investigated his private sexual activities and discharged him on account of those activities, in violation of his First and Fourteenth Amendment rights of privacy and free association. Defendants removed the action to this Court on February 24, 1999, based on Plaintiffs assertion of fedеral constitutional claims under 42 U.S.C. § 1983.
Plaintiff also challenged his discharge through the union grievance procedure. On April 12, 1999, arbitrator Carl Cohen took testimony on this grievance. On June 21, 1999, the arbitrator issued his ruling, upholding Defendants’ decision to discharge Plaintiff, but awarding back pay to Plaintiff for the period from his suspension on July 14, 1998 to the date of the arbitration hearing. In so ruling, the arbitrator found that “[t]he operation and efficiency of the [Township Police] Department were adversely affected, and would be more gravely affected were Officer Mercure reinstated.” (Defendants’ Br., Ex. C, Arbitrator Decision at 8.) The arbitrator also “recognize[d] the force” of the Union’s position that “private acts of police officers, and especially their private sex lives, are not legitimate grounds for discipline,” but found that “[i]n this case the acts did not remain genuinely private.” (Id.) However, the arbitrator found that other Township police officers shared the blame for “the notoriety of the matter,” and accordingly concluded that an award of back pay was appropriate. (Id. at 6, 8-10.)
In the present motion, filed on September 17, 1999, Defendants seek summary judgment in their favor on Plaintiffs federal claims only. In support of this motion, Defеndants argue that the individual Defendants are entitled to qualified immunity, that Plaintiff has failed to establish a basis for municipal liability, that the discharge of Plaintiff did not violate his constitutional rights, and that Plaintiff has failed to set forth a viable claim of civil conspiracy. Plaintiff filed a response in opposition to this motion on November 5, 1999, and Defendants filed a reply in further support of their motion on November 12,1999. Finally, on January 18, 2000, the Court heard the argument of counsel in support of and opposition to this motion.
III. ANALYSIS
A. The Standards Governing Defendants’ Motion
In their present motion, Defendants seeks summary judgment in their favor on Plaintiffs federal constitutional claims. Under the relevant Federal Rule, summary judgment is proper “ ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Fed.R.Civ.P. 56(c).
Three 1986 Supreme Court
cases
— Mat-
sushita Electrical Industrial Co. v. Zenith Radio Corp.,
*820 In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the еxistence of an element essential to that party’s case, and on which that party will bear the burden of proof.
Celotex,
After reviewing the above trilogy, the Sixth Circuit adopted a series of principles governing motions for summary judgment. These principles include:
* Cases involving state of mind issues are not necessarily inappropriate for summary judgment.
* The movant must meet the initial burden of showing “the absence of a genuine issue of material fact” as to an essential element of the non-movant’s case. This burden may be met by pointing out to the court that the respondent, having had sufficient opportunity for discovery, has no evidence to support an essential element of his or her case.
* The respondent cannot rely on the hope that the trier of fact will disbelieve the movant’s denial of a disputed fact, but must “present affirmative evidence in order to defeat a properly supported motion for summary judgment.”
* The trial court no longer has the duty to search the entire record to establish that it is bereft of a genuine issue of material fact.
* The trial court has more discretion than in the “old era” in evaluating the respondent’s evidence. The respondent must “do more than simply show that there is some metaphysical doubt as to the material facts.” Further, “[w]here the record taken as a whole could not lead a rational trier of fact to find” for the respondent, the motion should be granted. The trial court has at least some discretion to determine whether the respondent’s claim is plausible.
Street v. J.C. Bradford & Co.,
B. Plaintiff Has Failed to Identify a Constitutionally Protected Interest Abridged by His Discharge.
Although the principal focus of Defendants’ motion is the defense of qualified immunity, the Court believes it necessary to first address two more fundamental questions before considering the applicability of this defense. First, absent the infringement of a constitutionally protected interest, Plaintiff cannot succeed in his claims under 42 U.S.C. § 1983, and Defendants need not appeal to qualified immunity. Next, even if Plaintiff succeeds in identifying a constitutional right implicated by Defendants’ actions, Defendants still are entitled to prevail if they show that the Township’s interest as employer in providing effective law enforcement services to the community outweighs Plaintiffs interest in engaging in conduct which he asserts is constitutionally protected. Only if both of these issues are resolved in Plaintiffs favor does the Court then reach the issue of qualified immunity. Yet, as discussed below, both of these antecedent issues represent insurmountable obstacles to Plaintiffs federal constitutional claims in this case.
First, as Plaintiff recognizes, and as confirmed by the language of the statute from which Plaintiffs federal claims arise, there can be no liability under 42 U.S.C. § 1983 absent a deprivation of “rights, privileges, or immunities secured by the Constitution and laws” of the United States.
See also Dunn v. State of Tennessee,
The first of the rights cited by Plaintiff, freedom of association, cannot be found in the plain text of the Bill of Rights, but nevertheless has been recognized in the case law, in two distinct forms. First, the Supreme Court has identified “a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, аssembly, petition for the redress of grievances, and the exercise of religion.”
Roberts v. United States Jaycees,
It is possible to find some kernel of expression in almost every activity a person undertakes — for example, walking down the street or meeting one’s friends at a shopping mall — but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons — coming together to engage in recreational dancing — is not protected by the First Amendment.
Next, the Suрreme Court has recognized a right of non-expressive or “intimate” association, reasoning that “choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.”
Roberts,
Regardless of its source, this right is not without its limits. It particular, the Supreme Court has emphatically rejected “the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription.”
Bowers,
The same holds true for the other constitutional right cited by Plaintiff, the right of privacy. This right, like the right of association, has been recognized in two general forms: “One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.”
Whalen v. Roe,
Although there is no consensus in the case law as to the precise contours of the “sexual privacy” and “intimate association” rights at issue here, the Court readily concludes that these rights do not encompass Plaintiffs conduct in this case. It is undisputed that Plaintiff and Ms. Yono began their relationship in December of 1997 or January of 1998, that this relationship became sexual in late January or early February of 1998, and that, throughout this time, Ms. Yono was married to Plaintiffs fellow officer, Sergeant Fred Yono. The record further shows that Ms. Yono remained married to Sergeant Yono until February of 1999, well after Plaintiff was discharged in July of 1998. Thus, at all relevant times from early 1998 until his discharge, Plaintiff was maintaining an intimate sexual relationship with a woman married to his superior officer.
There are many problems with recognizing this relationship as constitutionally protected, not the least of which is that Michigan law deems it a felony. Michigan’s penal code defines adultery as “the sexual intercourse of 2 persons, either of whom is married to a third person,” Mich. Comp Laws § 750.29, and further provides:
Any person who shall commit adultery shall be guilty of a felony; and when the crime is committed between a married woman and a man who is unmarried, the man shall be guilty of adultery, and hable to the same punishment.
Mich.Comp.Laws § 750.30. As the Texas Supreme Court recently observed, Michigan is by no means unique in this prоhibition:
Prohibitions against adultery have ancient roots. In the latter half of the 17th century in England, adultery was a capital offense. The common law brought to this country by the American colonists included the crime of adultery as previously defined by the canon law of England. Adultery was still considered a crime by courts and commentators in the latter half of the 19th century when the Fourteenth Amendment. In fact, adultery is a crime today in half of the states and the District of Columbia.
City of Sherman v. Henry,
*823
Thus, the claimed right in this case is not unlike the right at issue in
Bowers,
the asserted “fundamental right to engage in homosexual sodomy.”
Plaintiff argues, however, that Michigan’s adultery statutes are “archaic” and “never enforced.” (Plaintiffs Response Br. at 12.) This, even if true, is largely beside the point. As cautioned in
Bowers,
there should be “great resistance to expand the substantive reach” of the Fourteenth Amendment’s Due Process Clause, because “[o]therwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority.”
Not surprisingly, Plaintiff has failed to suggest how his decision to enter into a relationship with a married woman is comparable to decisions deemed private by the Suprеme Court: specifically, certain fundamental decisions relating to marriage, procreation, contraception, family relationships, and child rearing and education.
See Carey v. Population Servs. Int’l,
Admittedly, some courts have held to the contrary, finding at least a limited right to sexual privacy regardless of the marital status of the parties to the relationship.
See, e.g., Thorne v. City of El Segundo,
Indeed, in light of Bowers, it is not clear what remains of Briggs’ recognition of a broad right of “sexual privacy” encompassing intimate relationships of any sort, so long as they are truly “private.” Bowers specifically rejects the notion that an activity can claim constitutional protection simply by virtue of bеing purely “private”:
Respondent ... asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia,394 U.S. 557 ,89 S.Ct. 1243 ,22 L.Ed.2d 542 (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one’s home: “If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch.” Id., at 565,89 S.Ct. at 1248 .
Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id., at 568, n. 11,89 S.Ct., at 1249, n. 11 . And if respondent’s submission is limited to the voluntary sеxual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road.
This Court, likewise, declines to travel down a different but entirely analogous road. Just as the
Bowers
Court was unwilling to confer constitutional protection upon one form of voluntary and consensual sexual conduct that a significant number of states still deem illegal, this Court also is hesitant to recognize a constitutionally protected interest in a different form of sexual conduct that remains prohibited in many states, including Michigan. Indeed, even assuming Plaintiffs conduct here was
*825
every bit as “private” as the conduct at issue in
Bowers,
and even assuming this public/private distinction has legal significance in determining whether an activity is constitutionally protected, an adulterous relationship simply cannot claim the “victimless” and fully consensual status of the conduct in
Botvers.
Rather, the Michigan Supreme Court has recognized that Michigan’s adultery law “guards the sanctity of marriage” by “protecting] each nonparticipating spouse.”
People v. Lipski,
Consequently, regardless of Sergeant Yono’s particular feelings about his wife’s relationship with Plаintiff in this case, and regardless of the strength of the Yonos’ marriage by the time Ms. Yono began her relationship with Plaintiff, the Court fails to see how conduct that is widely viewed as subject to reproach, is contrary to the institution of marriage sanctioned by the State, and is prohibited under Michigan’s penal code can be elevated to the status of constitutionally protected behavior. Moreover, the Court is unwilling to invite judicial scrutiny of the intimate details of personal relationships by holding that the existence or absence of a constitutionally protected interest in an adulterous relationship turns upon the strength of the parties’ marriages or the feelings of those affected. Accordingly, because Plaintiff was not engaged in constitutionally protected activity, Defendant’s decision to discharge him for his adulterous relationship with the wife of a fellow officer cannot give rise to liability under 42 U.S.C. § 1983.
C. Even If Plaintiff’s Termination Implicated a Liberty Interest Protected by the Constitution, Defendants Have Established an Adequate Justification for Their Discharge Decision.
As discussed above, the Court has concluded that Plaintiffs conduct does not lie at the core of any express constitutional guarantee, and that it also cаnnot be viewed as the exercise of a more general, constitutionally protected interest in privacy or intimate association. Yet, even if the Court were to hold, to the contrary, that Plaintiffs actions implicate some form of “non-core” liberty interest, the deprivation of such an interest still cannot support a claim under 42 U.S.C. § 1983 unless it is “arbitrary” and “utterly unreasonable.”
See Swank, supra,
In addressing this question, it is important to bear in mind the employer/employee relationship that existed between Plaintiff and Defendants. While a citizen does not surrender his constitutional rights upon becoming a public employee, the Supreme Court nevertheless has cautioned that “government offices could not function if every employment decision became a constitutional matter.”
Connick v. Myers,
The proper calibration of this balance depends upon the gravity of the employee’s liberty interest, as well as the degree of the State’s interest in governing a particular workplace. In
Kelley,
for example, the Court noted that it had previously upheld “comprehensive and substantial restrictions upon activities of both federal and state employees lying at the core of the First Amendment,” and reasoned that “there is surely even more room for restrictive regulations of state employees where the claim implicates only the more general contours of the substantive liberty interest protected by the Fourteenth Amendment.”
In this case, both sides of the Pickering balance suggest that due deference should be given to Defendants’ employment decision. Plainly, having already found that Plaintiffs conduct does not implicate even a lesser, “non-core” liberty interest, the Court cannot conclude that any such liberty interest held by Plaintiff is so strong as to render an infringement of it inherently suspect. Rather, as with the hair-length regulation at issue in Kelley, Defendants’ actions here pass constitutional muster so long as they were not “irrational” or “arbitrary.” Moreover, given the importance of effective law enforcement, a function that lies at the core of the State’s police power, Defendants are entitled to a significant degree of deference in their management and operation of the Township police department.
In light of these considerations, the Court readily concludes that Defendants’ decision to discharge Plaintiff was not аrbitrary or irrational. As noted, Plaintiffs conduct appears to have violated Michigan’s prohibition against adultery, a law that presumably reflects the judgment of Michigan’s citizenry that such behavior is wrongful. In a letter informing Plaintiff of the reasons for his discharge,
9
Defendant Perkins first cited this law, and then stated that “[a]s law enforcement officers, we live by a code of ethics that speaks to recognizing our badge of office as a symbol of public faith.” (Plaintiffs Response Br., Ex. 12, at 2.) Defendant Perkins then concluded that Plaintiff had violated a departmental rule requiring that officers must “maintain a level of moral conduct in their personal and business affairs which is in keeping with the highest standards of the law enforcement profession,” and that “[ojfficers shall not participate in any incident involving moral turpitude which ... causes the department to be brought into disrepute.” (Id (quoting Rule of Conduct 7120.10.4).) This reasoning alone would suffice to establish that Defendants’ decision was not “so irrational that it may be branded ‘arbitrary.’”
Kelley,
But, Defendants have identified yet another, even stronger justification for their decision. Plaintiffs partner in his relationship was not a third party or mere stranger with no connection to Defendant’s police department; rather, he choice to enter into a relationship with the wife of his superior officer on the force, Sergeant Yono. The courts have frequently recognized the critical importance of cohesiveness among fellow officers on a police force.
See, e.g., Kelley,
In his letter announcing his decision to terminate Plaintiff, Defendant Perkins relied heavily on this need for cohesiveness among members of the Township police force. This letter notes that “[e]ach officer’s competence affects the overall effectiveness of this department,” and states that “[i]t is truly unfortunate that [Plaintiff] did not think about how [his] inappropriate behavior could undermine not only the public trust, but more importantly the trust fellow officers had in [him].” (Plaintiffs Response Br., Ex. 12, at 2.) Defendant Perkins further states that Plаintiffs “display of unprofessional conduct to members of this department and Sgt. Yono has caused a harm so great that the restoration of the confidence your fellow officers had in you is an impossibility.” (Id.) He observes, finally, that this is especially so “in a small department such as this where there is a great reliance on each other.” (Id.) Thus, Defendant Perkins concluded that Plaintiff was guilty of unprofessional conduct, defined in the department rules as “any action or inaction which discredits the officers and/or the department or which impairs the operation and efficiency of the department or the officer.” (Id. (quoting Rule of Conduct 7120.10.3).) 10 Under the Pickering balancing test, there is no doubt that this conclusion was neither arbitrary nor irrational.
While not denying that his conduct could cause strain in his relationship with fellow officers, Plaintiff nevertheless contends that there is insufficient evidence in this case of any actual negative impact on de
*828
partmental operations, and that “the Township police department did not come to a screeching halt.” (Plaintiffs Response Br. at 9.) The law, however, does not require Defendants to wait and see whether the department would “come to a screeching halt” before taking action. Rather, as the Sixth Cirсuit explained in upholding a anti-nepotism policy imposed on public school teachers, the defendant school system was entitled to implement this policy without waiting for the “recited harms [to] manifest themselves in an individual case,” and the policy itself could be deemed “rational even if [the school] never witnessed any of the parade of horribles it has asserted.”
Montgomery v. Carr,
In sum, Plaintiff has failed to identify any way in which Defendants’ decision to discharge him was arbitrary, irrational, or unreasonable. The law prohibits this Court from inquiring any further into the merits of this decision, or from second-guessing the “fairness” of it. “The Constitution is not-an employment manual,” and “federal courts cannot undertake in the name of the Constitution to regulate minutely every restriction that public employers place on their employees.”
Swank, supra,
D. Defendants Are Entitled to Qualified Immunity in Their Investigation of Plaintiffs Conduct.
In addition to challenging Defendants’ decision to terminate his employment, Plaintiff also challenges the means by which Defendants determined that he was engaged in an affair with the wife of Sergeant Yono. Specifically, Plaintiff alleges that Defendants’ investigation into his off-duty conduct, like their decision to discharge him, violated his constitutional right to privacy. However, even assuming this investigation infringed upon Plaintiffs privacy rights, the Court concludes that Defendants are shielded from liability under thе defense of qualified immunity.
As noted earlier, the constitutional right of privacy exists in two forms, protecting against unwarranted disclosure of personal matters, as well as against governmental interference in making certain types of fundamental personal decisions.
Whalen, supra,
As in any Fourth Amendment inquiry, it is necessary as an initial matter to determine whether Plaintiff had “an expectation of privacy that society is prepared to consider reasonable.”
O’Connor,
Thus, the record indicates that when Defendant Brooks and Officer Dolan took pictures of Plaintiffs vehicle, the car was openly and plainly visible from the street. Plaintiff does not allege that Defendants undertook any more invasive action in their investigation; rather, when confronted with these pictures, he admitted his relationship with Sergeant Yono’s wife. Under these circumstances, there can be no “reasonable expectation of privacy” in a vehicle parked in a driveway and visible from a public street.
This leaves Plaintiff with only the claim that it was per se unreasonable for Defendants to undertake any sort of investigation of Plaintiffs conduct, presumably because it involved “private” off-duty activity. Yet, where the Court has already found that this activity is not encompassed within any constitutional right to privacy, and that Defendants committed no constitutional infraction by discharging Plaintiff for this conduct, it cannot be said that Defendants violated the Constitution merely by investigating, through means that did not transgress any reasonable expectation of privacy, whether Plaintiff was in fact engaged in this conduct. Rather, for the same reason that Defendants could have rationally concluded that Plaintiffs behavior was grounds for discharging him, they likewise could have reasonably concluded that Plaintiffs “private” conduct was in fact a matter of departmental concern, and that they were entitled, therefore, to investigate whether the rumors of Plaintiffs relationship with Ms. Yono were true.
Further, even if the constitutionality of the investigation could be deemed questionable, Defendants still could not be held hable under 42 U.S.C. § 1983 unless their actions violated a “clearly established” right. The Sixth Circuit’s recent decision in Hughes, supra, is directly on point, and shows that there is no such clearly established right at issue here. In Hughes, the Court first outlined the law of qualified immunity as established by the Supreme Court:
In Harlow v. Fitzgerald,457 U.S. 800 , 818,102 S.Ct. 2727 , 2738,73 L.Ed.2d 396 (1982), the Supreme Court held that “governmental officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Reiterating this standard, the Supreme Court stated in Davis v. Scherer,468 U.S. 183 , 191,104 S.Ct. 3012 , 3017,82 L.Ed.2d 139 (1984), “[w]hether an official may prevail in his qualified immunity defense depends upon the ‘objective reasonable *830 ness of [his] conduct as measured by reference to clearly established law.’ ”
The Court then turned to the case before it, in which the plaintiffs, a police officer and his wife, alleged that the defendants, a city and various police department officials, had violated their constitutional rights of free association and privacy by inquiring about their personal sexual activities while investigating allegations that the plaintiff officer had sexually harassed co-workers, dated a gang member’s mother, and bragged that he maintаined an open marriage and a “swinging” lifestyle. The Court found that Supreme Court precedents supplied no relevant “clearly established” right that had been abridged by the defendants, as “the Supreme Court has not definitively answered the difficult question whether and to what extent the Constitution prohibits a state (or state actor) from regulating the private consensual sexual behavior of adults.”
The Sixth Circuit then found that
Briggs, supra,
was the only decision within this Circuit to deal with a similar issue of “sexual privacy,” but that even this case “did not clearly establish that a violation of the right to privacy or free association would occur if a police department eon-ducted an investigation into the marital sexual relations of a police officer accused of sexual harassment.”
Similarly, in this case, while the Court does not condone Defendant Brooks’ decision to investigate the rumors of Plaintiffs relationship with Ms. Yono, much less his decision as the most senior officer on the night shift to invite every squad car on this shift to come and view Plaintiffs vehicle in Ms. Yono’s driveway, the Court finds that Sergeant Brooks’ actions violated no clearly established right of “sexual privacy” or free association. 11 First, unlike in Hughes, the relationship under investigation here was not between a married couple, but between an officer and his superior officer’s wife. Next, as in Hughes, and unlike in Briggs, the investigation here was not wholly unrelated to Plaintiffs conduct as a police officer. Rather, as discussed earli *831 er, Plaintiffs relationship with Ms. Yono was relevant to his performance as an officer, because it threatened the cohesiveness of the members of the Township police force and perhaps violated Michigаn’s adultery statute. Moreover, Sergeant Brooks’ investigation did not excessively intrude into Plaintiffs private affairs, but uncovered only the publicly observable fact that Plaintiff had parked his car at Ms. Yono’s home.
Accordingly, as was true in Hughes, no “clearly established” law, in this Circuit or elsewhere, would have informed Defendant Brooks that his actions implicated Plaintiffs constitutional rights of privacy or free association. The only case that could be viewed as establishing a right of “sexual privacy,” Briggs, is distinguishable on the ground that it involved conduct found to be purely private. Having already concluded that Defendants acted on a legitimate concern that Plaintiffs conduct had implications to the operation of the Township police force, the Court finds that Defendant Brooks violated no clearly established rights in his investigation of Plaintiffs relationship with Ms. Yono, and that Brooks is entitled to qualified immunity from the constitutional claims against him. 12
E. Plaintiff Has Failed to Identify an Unconstitutional Custom or. Policy of the Defendant Township.
In his federal constitutional claim against the Defendant Township, Plaintiff cites
Monell v. Department of Social Servs.,
Plainly, to the extent Plaintiff argues that the Township maintained an unconstitutional policy or practice of discharging employees based on their exercise of their rights of sexual privacy and free association, this claim cannot succeed. Rather, given the Court’s holding that no such rights were abridged in this case, there is *832 no basis for charging any Defendant, individual or municipal, with a constitutional violation of this sort. In any event, Plaintiff does not contend that the Township adopted such a policy or practice. To the contrary, Plaintiff argues, in essence, that the Township lacked such a uniform policy or practice, and instead elected to discharge him while failing to take any disciplinary action against other employees who allegedly engaged in similar conduct. According to Plaintiff, this municipal practice of “arbitrary and selective” discipline gives rise to Township liability under 42 U.S.C. § 1983.
In
Wright v. MetroHealth Medical Center,
58 F.8d 1130, 1137 n. 7 (6th Cir.1995), the Sixth Circuit considered a claim of selective enforcement of a government employer’s anti-nepotism policy. After first upholding this policy against a challenge that it violated the plaintiff employees’ fundamental right to marry, the Court next explained that “[s]elective enforcement of a facially constitutional regulation does not, by itself, violate equal protection.”
Similarly, in this case, the Township is entitled to summary judgment on Plaintiffs claim of arbitrary and selective discipline. First, Plaintiff has failed to identify any protected class to which he belongs, such that the Township’s actions would be subject to heightened scrutiny. Next, the Court already has concluded that the decision to discharge Plaintiff did not inappropriately punish or inhibit his exercise of constitutional rights.
Thus, to succeed under this theory of selective discipline, Plaintiff must allege and show that the Township, through Defendants Perkins and Foster, acted with a malicious and bad faith intent to injure him. Plaintiffs complaint includes no such allegations, and there is no suggestion in the record that Defendants Perkins and Foster harbored such ill will toward him. 15 Plaintiff, however, attempts to sustain this claim by suggesting that the Township acted arbitrarily, and by unveiling a laundry list of alleged misdeeds by other members of the Township police force that did not result in dismissals.
Apart from the many questions as to the admissibility of Plaintiffs “evidence” of this alleged wrongdoing, much of which is in the form of inadmissible hearsay that may not be considered in deciding a motion for summary judgment,
see U.S. Structures, Inc. v. J.P. Structures, Inc.,
F. To the Extent Plaintiffs Civil Conspiracy Claim Rests upon Federal Constitutional Violations, Defendants Are Entitled to Summary Judgment on This Claim.
Finally, Plaintiff alleges in his Complaint that Defendants conspired to violate his constitutional rights and wrongfully terminate him. To the extent this claim is based on alleged violations of the U.S. Constitution, it presumably rests upon either 42 U.S.C. § 1983 or 42 U.S.C. § 1985(3), which prohibits conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.”
As an initial matter, under the “intracor-porate conspiracy” doctrine, Defendants Perkins, Foster, and Brooks cannot be found to have conspired with the entity for which they all acted as agеnts, the Township, unless Plaintiff can show that they acted outside the scope of their employment.
See Jackson v. City of Columbus,
IV. CONCLUSION
For the reasons set forth above,
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiffs remaining state-law claims are REMANDED to Wayne County Circuit Court.
ORDER DISMISSING FEDERAL CLAIMS AND REMANDING REMAINING STATE-LAW CLAIMS
The Court having this day entered an Opinion and Order (i) granting Defendants’ Motion for Summary Judgment with respect to the federal claims asserted in Plaintiffs Complaint and not previously dismissed by stipulation of the parties, and (ii) declining to retain jurisdiction over the remaining state-law claims asserted in the Complaint,
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDICATED, AND DECREED that Plaintiffs remaining federal claims set forth in Counts I, III, and VIII of his Complaint be, and hereby are, dismissed in their entirety with prejudice. IT IS FURTHER ORDERED that Plaintiffs remaining state-law claims be RE *834 MANDED to Wayne County Circuit Court for further proceedings.
Notes
. Defendants also filed a supplemental brief in support of their motion on January 10, 2000. Because this brief was filed only shortly before thе hearing on Defendants’ motion, and because there is no provision in the Local Rules for this District which authorizes the filing of such a brief, the Court will not consider this supplemental brief or its attached exhibits in deciding Defendants’ motion.
. After her divorce from Sergeant Yono, Mrs. Yono returned to using her maiden name, Joanna Komisar. More recently, following her marriage to Plaintiff on October 2, 1999, she now goes by the name of Joanna Mercure.
. The parties dispute when Sergeant Yono first became aware of the relationship between his wife and Plaintiff. Sergeant Yono testified that he did not learn of this affair until July 14, 1998, {id. at 17-18), but Ms. Yono has characterized this claim as “nonsense,” stating that "I personally told Mr. Yono that I was dating [Plaintiff! on many occasions.” (Plaintiffs Response Br., Ex. 8, Joanna Mercure Aff. at ¶ 5.) Plaintiff likewise has testified that Sergeant Yono knew of the relationship, or at least that he and Ms. Yono were seeing each other on a social basis, and that Sergeant Yono asked only that he not "flaunt it around the department.” (Defendants’ Br., Ex. A, Arbitration Hearing at 162-63.)
. The number "754” is Plaintiff’s badge number, and "714” is Sergeant Yono’s badge number. The term “half unit” is police jargon for a wife or girlfriend. (Id. at 151.)
. According to Plaintiff, after he left this July 15 meeting, Defendant Perkins approached him and demanded to know whether he tape recorded the meeting. When told that Plaintiff had taped the meeting, Defendant Perkins allegedly grabbed Plaintiff, threw him against the wall, and forcibly removed the tape recorder from his pocket. When Defendant Perkins subsequently returned the tape recorder, the portion of the tape capturing this alleged assault had been erased. Based on this incident. Plaintiff’s claims in this case include a state-law claim of assault and battery against Defendant Perkins. However, Defendants do not address this claim in their present motion, but only the federal claims.
. By stipulated Order dated March 26, 1999, Counts II, IV, and V of Plaintiff’s Complaint were dismissed with prejudice.
. “Taken together the three cases signal to the lower courts that summary judgment can be relied upon more so than in the past to weed out frivolous lawsuits and avoid wasteful tri *820 ais.” 10A Charles A. Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure, § 2727, at 33 (1993 Supp.).
. As discussed below, this distinction is fully applicable here, where Plaintiff's conduct could reasonably be viewed as bearing upon his on-the-job performance.
. It should be noted that Plaintiff does not contend that Defendant Perkins acted for reasons other than those slated in the letter. Instead, he argues that these reasons are constitutionally infirm, аnd also, as discussed below, that Defendants are guilty of "hypocrisy” in their failure to take action in other instances involving "immoral conduct or conduct that has brought the Township police department into disrepute.” (Plaintiffs Response Br. at 1.)
. The arbitrator who heard Plaintiff's grievance reached a similar conclusion in upholding Plaintiffs discharge, stating that "[t]he operation and efficiency of the Department were adversely affected, and would be more gravely affected were Officer Mercure reinstated.” (Defendant’s Br., Ex. C, at 8.)
. Plaintiff apparently does not charge the other Defendants with liability for this investigation (apart from the municipal liability claim, discussed below), as he states in his brief that Sergeant Brooks’ investigation “was not an official police investigation,” but was evidently undertaken by Defendant Brooks at his own initiative. (Plaintiff's Response Br. at 14.)
It should be noted that Brooks' investigation, if truly “unofficial,” would arguably not be under “color of state law,” and thus would not give rise to liability under 42 U.S.C. § 1983.
See Cronin, supra,
. It is not clear whether Plaintiff is asserting a separate constitutional claim based on Defеndant Brooks’ alleged posting of the picture of Plaintiff's car on the bulletin board of the police roll call room. This claim, if asserted, would suffer from the same defect described above: namely, that Plaintiff had no reasonable expectation of privacy in his vehicle parked in Ms. Yono’s driveway and visible from the public street. Moreover, for the reasons set forth above, Defendant Brooks also would be protected by qualified immunity in his limited dissemination of the picture to other members of the Township police force.
See Cronin, supra,
. For purposes of this motion, the Court will assume that these Defendants possessed poli-cymaking authority for the Township, or that their decisions were ratified by someone with such authority. This appears to be a safe assumption, where Defendant Perkins is the Township’s Director of Public Safety, the top position in the Township police force, and Defendant Foster is a Township supervisor who ratified Defendant Perkins’ decision to discharge Plaintiff.
. Although Plaintiff has not identified the constitutional provision upon which his claim of selective discipline rests, the Court is unaware of any provision apart from the Fourteenth Amendment’s Equal Protection Clause that might bear upon this claim.
. Rather, Plaintiff accuses Defendant Perkins only of ''hypocrisy,” presumably based on his decision to discharge Plaintiff while allegedly participating in an adulterous relationship himself. Even if this were true (and relevant), it would not suggest why Defendant Perkins might have singled out Plaintiff for discipline.
. The closest to an analogous incident cited by Plaintiff is his reference to a sexual harassment claim lodged against Defendant Brooks by a police dispatcher. However, while Plaintiff claims that Defendant Brooks was not disciplined for this conduct, Defendants have submitted an affidavit of Defendant Perkins stating that "Sgt. Brooks was disciplined within the parameters of the Collective Bargaining Agreement.” (Defendants’ Reply Br., Ex. G, Perkins Affidavit at ¶ 3.)
. Having resolved all of Plaintiff’s federal claims, the Court declines to retain jurisdiction over Plaintiff's remaining state-law claims. See 28 U.S.C. § 1367(c)(3). Accordingly, these claims — including those portions of Counts I and III arising under the Michigan Constitution, any portion of Count VIII not involving alleged federal constitutional violations, and Counts VI and VII — will be remanded to state court.