Adair v. Charter County of Wayne

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0203p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

X

-

MICHAEL ADAIR, WILLIAM CHILDRESS, LEON

-

DENTON, CHARLES ELSTONE, RICHARD FREDERICK,

-

RICHARD HITCH, ERNEST HUNTER, CHARLES

-

No. 04-2457

JOHNSON, VICTOR KLINE, JOHN MALANIAK,

,

MICHAEL MOLITOR, PAUL MOLITOR, PETER >

MOLITOR, DAVID OKONEY, DEAN PIGOTT, BRUCE -

-

-

PRESTON, MICHAEL TAVTIGIAN, JOHN TESCHKE,

Plaintiffs-Appellants, -

ROBERT TIPTON, and BRADFORD VINCENT,

-

-

-

v.

-

-

-

CHARTER COUNTY OF WAYNE, a Municipal

-

Corporation, DETROIT METROPOLITAN WAYNE

Corporation, MARK DEBEAU, Individually and in his -

COUNTY AIRPORT AUTHORITY, a Municipal

-

capacity as Director of Public Safety, KENT BOOTH, -

-

-

Individually and in his capacity as Police Chief -

Defendants-Appellees. -

Airport Police Department, Jointly and Severally,

-

N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 02-71139—Denise Page Hood, District Judge.

Argued: January 24, 2006

Decided and Filed: June 22, 2006

Before: SILER, SUTTON, and COOK, Circuit Judges.

_________________

COUNSEL

ARGUED: Jamil Akhtar, AKHTAR, WEBB & EBEL, Troy, Michigan, for Appellants. Deborah

L. Brouwer, NEMETH BURWELL, Detroit, Michigan, for Appellees. ON BRIEF: Jamil Akhtar,

AKHTAR, WEBB & EBEL, Troy, Michigan, for Appellants. Deborah L. Brouwer, NEMETH

BURWELL, Detroit, Michigan, for Appellees.

1

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 2

_________________

OPINION

_________________

SILER, Circuit Judge. Plaintiffs comprise a group of officers employed by the Wayne

County Airport Authority and assigned to several specialty units. While off duty, they were required

to carry pagers and to remain within a specified geographic area in order to maintain availability

during off-duty hours. They filed suit under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.

(“FLSA”), seeking overtime compensation for all hours not on duty but during which they carried

the pagers. After suit was filed, Airport Authority management requested that officers return their

pagers and also eliminated compensatory time in favor of overtime and assigned county-owned

vehicles to the K-9 officers. Based on these actions, Plaintiffs amended their complaint to include

claims of retaliation in violation of the FLSA and 42 U.S.C. § 1983. The district court granted

summary judgment to Defendants on all claims. Because Plaintiffs are not entitled to overtime pay

under the FLSA, and because Defendants’ actions do not constitute retaliation, we affirm.

I. BACKGROUND

Plaintiffs are police officers assigned to the Wayne County, Michigan airport, which services

much of Michigan’s lower peninsula, including the entire Detroit metropolitan area. All employees

of the airport police department were originally employees of the Wayne County Sheriff’s

Department until the Airport Authority was formed as a separate entity to operate the airport on

March 26, 2002. Generally, Plaintiffs were scheduled to work a forty-hour workweek. If Plaintiffs

wanted to work overtime, they would place their names on an overtime list and would be called to

work according to seniority and/or their collective bargaining agreement, if and when overtime

hours became available. An officer could refuse the overtime offered. Officers working overtime

were paid overtime pay.

The Plaintiffs in this case are members of four specialty police units, including the Special

Response Unit (SRU-SWAT), Explosive and Ordnance Disposal (EOD-Bomb Squad), K-9, and the

Accident Investigation Unit (AI). Officers belonging to these specialty units receive extra “specialty

pay.” All officers in the four specialty units had to live within a close geographical area to the

airport. Members of the K-9 and EOD-Bomb Squad units had to agree, as a condition of

employment, to live within a thirty-minute travel time from the airport. SRU/SWAT officers are

required to maintain reasonable availability when off duty.

Further, officers assigned to the four specialty units were required to carry digital pagers

which operated on a state-wide basis. The pagers were to be carried both on and off duty and always

turned on. K-9, SRU-SWAT, and EOD-Bomb Squad officers all agreed to respond to calls for

service at all hours as a condition of being selected to the unit. Two Plaintiffs testified that they were

orally counseled for not responding when paged, and other Plaintiffs testified they understood that

failure to respond to an off-duty page would result in discipline.

Prior to September 11, 2001, Plaintiffs claim they generally could attend to their personal

business while off duty, subject to responding when paged. However, immediately after the events

of September 11, the officers were placed on twelve-hour shifts, seven days per week, and had their

leave and vacation days cancelled. On September 21, the shifts were reduced to ten hours, six days

per week. SRU-SWAT, K-9, and EOD-Bomb Squad officers were told that, when they were off

duty, they had to stay close to home and be able to respond immediately should the need arise. This

continued until November 26, 2001, when the officers went on a five-day per week schedule, ten

hours per day, and were allowed to use their vacation time.

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 3

In October 2001, shortly after the terrorist attacks, Defendant Mark DeBeau was hired as the

Director of Public Safety at the airport. He was directed to review his department’s administrative

functions and expenses. Due to his review, the airport considered a number of changes in its

policing operations. Several of these policy changes were later implemented. Airport management

issued specially-outfitted sports utility vehicles to each of its K-9 officers, and discontinued the

payment of flat rate mileage for driving to and from work to those officers. Management also

decided to freeze the accumulation and use of banked compensatory time, or “comp time,” due to

staffing problems caused by the September 11 terrorist attacks and resulting personnel requirements

mandated by the federal government. Allowing officers to utilize comp time, in addition to vacation

time, forced the airport to rely on (and pay for) overtime to compensate for their absences. Instead

of paying officers comp time for certain activities, the airport decided that it would be less costly

to pay its officers actual overtime pay. Later, the sport utility vehicles were returned to the airport

and the flat rate mileage reimbursement policy was reinstated due to the dissatisfaction of the K-9

unit officers and their union.

In 2002, twenty-five officers filed suit against Wayne County seeking overtime pay under

the FLSA. After the initial complaint was filed, airport management collected the pagers from all

of its officers at the airport. Plaintiffs then amended their complaint to add a second count under

42 U.S.C. § 1983, alleging that the collection of all pagers was unlawful retaliation against them.

Plaintiffs later added a retaliation claim under the FLSA for the changes implemented by the airport

as recommended by Mark DeBeau. This appeal names Wayne County and the Wayne County

Airport Authority as municipal defendants and DeBeau, Director of Public Safety, as a defendant

individually and in his official capacity.1

II. DISCUSSION

We review a district court’s grant of summary judgment de novo. Allen v. Michigan Dep’t

of Corrections, 165 F.3d 405, 409 (6th Cir. 1999). 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).

A. Plaintiffs’ Demand for Overtime Pay under the FLSA

Plaintiffs first claim that the district court erred in ruling that they failed to state a claim

under the FLSA for overtime compensation. Their chief contention is that carrying pagers as

required by the airport entitles them to overtime pay for all hours not at work that the pagers were

worn.

The FLSA “provides that employees must be compensated at one and one-half times their

regular rate for overtime work.” Martin v. Ohio Turnpike Comm’n, 968 F.2d 606, 609 (6th Cir.

1992) (citing 29 U.S.C. § 207(a)). Although the FLSA does not state whether time spent on call is

working time, the Supreme Court has held that, under some circumstances, waiting time is

compensable. See Armour & Co. v. Wantock, 323 U.S. 126, 133 (1944); Skidmore v. Swift & Co.,

323 U.S. 134, 136 (1944). Both Armour and Skidmore involved plaintiff firefighters required to

spend approximately half of their time off in firehouses in order to respond quickly to alarms. The

Court declined to rule definitively as to whether on-call time is working time; rather, those cases

held that the result turns on whether an employee’s time is spent predominantly for the employer’s

benefit or for the employee’s, a question dependent upon all the circumstances of the case. Armour,

323 U.S. at 133.

1

Although Kent Booth, Police Chief, is named as an individual defendant in the lawsuit’s caption, Plaintiffs

do not address his liability in their brief on appeal.

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 4

Although the Armour and Skidmore plaintiffs spent their off-time on the employers’

premises, this circuit has acknowledged that “an employee may be entitled to compensation even

though he or she is on call at home or elsewhere.” Martin, 968 F.2d at 609. In Martin, we held that

“on-call time spent at home may be compensable if the restrictions imposed are so onerous as to

prevent employees from effectively using the time for personal pursuits.” Id. at 611. That case

considered the claims of highway maintenance workers for overtime pay to compensate them for

time spent away from work but on call and subject to telephone or pager summons from the

employer. Id. at 607-08. The Martin plaintiffs, unlike Plaintiffs here, were designated as either on

or off call, and on-call employees were summoned to work before off-call employees. The workers

could determine the likelihood of being summoned by consulting the roster of employees who had

worked the least amount of overtime to date. Id. During a three-year period, while there were 69

instances of discipline for failing to report when called, no employee was ever discharged for such

a failure. Id. at 608. Finally, there was no evidence that the workers were called to work with any

frequency. Id.

The Martin court evaluated the claims in light of the precedent of other circuits and the

Department of Labor’s promulgated regulations concerning the compensability of on-call time. Id.

at 610-11. The relevant regulations provide that “[t]ime spent at home on call may or may not be

compensable depending on whether the restrictions placed on the employee preclude using the time

for personal pursuits” and that “where the conditions placed on the employee’s activities are so

restrictive that the employee cannot use the time effectively for personal pursuits, such time spent

on call is compensable.” 29 C.F.R. § 553.221(d). This court found summary judgment against the

plaintiffs’ claims appropriate because they failed to demonstrate that the employer’s on-call policy

resulted in severe restrictions on their personal time, imposing “burdens that seriously interfere with

their ability to use the time for personal pursuits,” such as being summoned to work so frequently

that effective use of personal time was made impracticable. Id. at 611-12. That some of the

plaintiffs’ personal activities may have been affected was deemed insufficient to establish a FLSA

claim. Id. at 611; see Aiken v. City of Memphis, 190 F.3d 753 (6th Cir. 1999); see also Rutlin v.

Prime Succession, Inc., 220 F.3d 737, 744 (6th Cir. 2000) (licensed funeral director and embalmer

owed overtime compensation for time spent on 15 to 20 phone calls he received per night while on

call, but owed no overtime pay for the rest of on-call time that required him to remain at home and

“prevented him from drinking alcohol, visiting his children, or boating”).

Plaintiffs proffer three reasons why the airport management’s on-call policy is so “severely

restrictive” as to require payment of overtime compensation under the FLSA. First, they argue that

their personal pursuits are severely restricted because they are subject to discipline for not

responding when paged. Plaintiffs argue that the Martin court noted an unpublished district court

opinion which concluded that the employees’ obligation to respond to the pages prevented them

from using the time for their own purposes because the employees were subject to discipline. See

Martin, 968 F.2d at 610-11 (discussing Owens v. ITT Rayonier, Inc., No. C88-533T, 1990 U.S. Dist.

LEXIS 18715 (W.D. Wash. Sept. 26, 1990)). However, the Martin court explicitly discredited the

reasoning of that decision because it failed to cite any cases or rest on any legal analysis for

support.2 Id. Martin then went on to note that the defendant’s policy included discipline for failure

to respond to a page. Although the defendant took disciplinary action 69 times in a three-year period

for failure to respond to a page, the Martin court did not find that this policy was especially

restrictive or burdensome and granted summary judgment in favor of the defendant. Id. at 612.

2

Moreover, the Ninth Circuit later reversed that decision. See Owens v. ITT Rayonier, Inc., 971 F.2d 347, 348

(9th Cir. 1992).

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 5

The district court concluded that Plaintiffs were not severely restricted by the Defendants’

on-call policy because Plaintiffs admitted that they could engage in all of their regular activities

while off duty. Although Plaintiffs assert that the fear of imposition of discipline alone is sufficient

to transform otherwise non-compensable time into compensable time, they provide no precedent

holding the same. The on-call policy at issue in this case presents no objective restrictions on

Plaintiffs’ off-duty time besides requiring them to carry pagers. The law in this circuit plainly states

the test for determining whether off-duty time is compensable: whether, during that time, the

employer imposes burdens on the employee so onerous that they prevent employees from effectively

using their time for personal pursuits. Id. at 611. The mere threat of discipline does not, by itself,

prevent employees from effectively using their off-duty time for personal pursuits.

Furthermore, there is no evidence that Plaintiffs ever were subject to discipline for failing

to respond to a page while off duty. Only three Plaintiffs claim to have been disciplined. One

Plaintiff was orally counseled for failing to answer a page while on duty and another Plaintiff was

disciplined for not carrying his pager while on duty. Despite the existence of airport management

orders requiring Plaintiffs to carry their pagers at all times, there is no policy regarding disciplining

Plaintiffs for failing to respond to a page.

Second, they argue that the restriction on their ability to live outside the geographical limits

associated with their positions constitutes severe restriction. However, employment of EOD-Bomb

Squad and K-9 officers was contingent on their agreement to live within thirty minutes of the airport.

The pagers they carried operated on a state-wide basis, allowing them to travel throughout Michigan

in their off-duty time. Plaintiffs could refuse to answer pages. If they did report to work when

paged, they received overtime pay for such work. Importantly, Plaintiffs admitted that they could

engage in all of their regular personal activities while off duty. Additionally, Plaintiffs failed to

demonstrate that they received so many calls that they could not effectively use their off-duty time.

In three years, SRU-SWAT was called only once, while EOD-Bomb Squad and AI units were called

in twice. The K-9 unit was called between fifteen to twenty times.

Third, Plaintiffs argue that the airport’s requirement that they remain at home to wait for a

call after the September 11, 2001 attacks also severely restricted their ability to attend to personal

pursuits. The airport management’s post-September 11 terrorist attack policy that temporarily

required Plaintiffs to remain close to home for enhanced availability in case of emergency also does

not create compensable time. While at home, Plaintiffs’ activities were not restricted in any way;

thus, the emergency management policy in place during those months did not severely restrict

Plaintiffs’ personal activities. Moreover, Plaintiffs testified that they were rarely called in during

this period. The evidence reveals that Plaintiffs’ off-duty time was not utilized predominantly for

the employer’s benefit, but for the employees’.

The evidence and arguments presented by the Plaintiffs are insufficient to show that

Defendants acted in violation of the FLSA.

B. Alleged Unlawful Retaliation in Violation of the FLSA

Plaintiffs argue that the district court erred in finding that they failed to state a claim of

retaliation in violation of the FLSA. They specifically disagree with the district court’s conclusion

that the actions taken by airport management were not materially adverse and were not motivated

by the filing of Plaintiffs’ lawsuit.

The anti-retaliation provision of FLSA provides that an employer is prohibited from

“discharg[ing] or in any other manner discriminat[ing] against [an] employee because such

employee has filed [a] complaint or instituted . . . any proceeding under [the FLSA].” 29 U.S.C.

§ 215(a)(3). The burden-shifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), applies to a FLSA claim of retaliation. See, e.g., Moore v. Freeman, 355 F.3d 558, 562 (6th

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 6

Cir. 2004). To establish a prima facie case of retaliation, an employee must prove that (1) he or she

engaged in a protected activity under the FLSA; (2) his or her exercise of this right was known by

the employer; (3) thereafter, the employer took an employment action adverse to her; and (4) there

was a causal connection between the protected activity and the adverse employment action. See,

e.g., Williams v. Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir. 1999). Such a prima facie showing

of retaliation “creates a presumption that the employer unlawfully discriminated against the

employee.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If the plaintiff establishes

a prima facie case, the burden then shifts to the defendant to set forth a legitimate, non-

discriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802.

If the defendant carries this burden, the plaintiff then must prove by a preponderance of the evidence

that the defendant’s proffered reasons were not its true reasons, but merely a pretext for illegal

discrimination. Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996).

Plaintiffs here satisfy the first two prongs of the burden-shifting analysis. They engaged in

a FLSA-protected activity, filing a cause of action seeking overtime pay, and notified Defendants

of the activity by serving them with the complaint. More questionable is whether Plaintiffs satisfied

the third and fourth prongs of the framework.

Materially Adverse Employment Action

The third prong requires an adverse employment action taken against the employee by the

employer. The employment action must be materially adverse. Kocsis, 97 F.3d at 887.

Employment actions qualifying as materially adverse include “termination of employment, a

demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of

benefits, significantly diminished material responsibilities, or other indices that might be unique to

a particular situation.” Id. at 886 (quoting Crady v. Liberty Nat’l Bank & Trust Co., 993 F.2d 132,

136 (7th Cir. 1993)). Mere inconvenience or an alteration of job responsibilities fail to constitute

materially adverse employment actions. Id.

Plaintiffs complain that Defendants took adverse action against them by ordering their pagers

returned. Such an action is not materially adverse. Plaintiffs did not suffer any loss or diminution

of wages, benefits, or responsibilities. Moreover, Plaintiffs’ initial action solely concerned their

dissatisfaction with carrying the pagers; they cannot now credibly assert that management’s decision

to remove the pagers was in any way adverse.

Plaintiffs also complain that Defendants’ decision to eliminate the mileage reimbursement

for K-9 officers and to provide them with county-owned and maintained SUVs, specially outfitted

with necessary equipment for the officers’ dogs, for transportation was materially adverse. Plaintiffs

were not denied any reimbursement for mileage already accrued on their personal vehicles;

Defendants only changed the policy for K-9 transportation, and the evidence reflects that the policy

change was not taken to retaliate against the Plaintiffs. Indeed, the purchase of the SUVs was a

subject of negotiations for several years prior to May 2002 and two weeks after the SUVs were

issued to the officers, they were returned to the county and the mileage reimbursement was

reinstated. The transportation policy change did not constitute an adverse employment action.

Plaintiffs finally complain that the freeze on accumulation and use of banked compensatory

time was an adverse action. This did not result in a material loss of benefits, termination, demotion,

transfer, or alteration of job responsibilities. Plaintiffs simply were required to utilize vacation days

for just that - vacation - rather than permitted to save vacation time and later exchange it for pay.

Moreover, the Airport Authority did not deprive Plaintiffs of any benefit by freezing the

accumulation of overtime pay; now officers working overtime receive pay instead of earning comp

time. Plaintiffs fail to prove that the actions taken by the Airport Authority were materially adverse.

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 7

Causal Connection

The fourth prong of the prima facie case requires Plaintiffs to prove a causal connection, that

is, that the filing of the suit caused the alleged retaliation. In order to demonstrate a causal

connection, “a plaintiff must produce sufficient evidence from which an inference can be drawn that

the adverse action would not have been taken had the plaintiff not filed a discrimination action.”

Allen, 165 F.3d at 413. “Although no one factor is dispositive in establishing a causal connection,

evidence that the defendant treated the plaintiff differently from identically situated employees or

that the adverse action was taken shortly after the plaintiff’s exercise of protected rights is relevant

to causation.” Id. However, that the actions complained of followed the protected activity closely

in time, standing alone, is insufficient to establish the causation element of a retaliation claim.

Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir. 2000) (summary judgment for employer

on retaliation claim affirmed where plaintiff’s only evidence of causation was timing).

Although Plaintiffs here speculate that the Airport Authority implemented policy changes

to retaliate against them for filing suit, they provide no factual support for their contentions.

Subjective beliefs, without affirmative evidence, are insufficient to establish a claim of retaliation.

Mitchell v. Toledo Hosp., 964 F.2d 577, 584-85 (6th Cir. 1992). That the changes occurred does not

compel the conclusion that they occurred to retaliate against the Plaintiffs. Moreover, that changes

were imposed on officers not involved in the lawsuit strongly negates the argument that airport

management’s actions were motivated by the filing of the suit. See Moon v. Transport Drivers, 836

F.2d 226, 230 (6th Cir. 1987) (citing B. Schlei & P. Grossman, Employment Discrimination Law,

Ch. 15 (2d ed. 1983), at 558-59 (“Proof that similarly situated nonprotestors were disciplined just

as harshly for the same infraction suggests nonretaliation.”)).

Defendants’ Legitimate, Nondiscriminatory Reasons

Even if Plaintiffs established a prima facie case of retaliation, the district court correctly

concluded that Defendants acted for legitimate, nondiscriminatory reasons. First, the Airport

Authority decided to remove the pagers from Plaintiffs - and all the airport’s officers - after the suit

was filed, but only because Plaintiffs complained that the pagers were burdensome. Second, the

Airport Authority supplied K-9 officers with fully-equipped, county-owned SUVs for transportation

of their dogs; their claim that this action was taken for efficiency reasons is wholly credible.

Furthermore, that the flat rate mileage policy was reinstated immediately after Plaintiffs complained

of its removal supports a finding that the change was nondiscriminatory. Finally, Defendants argue

that freezing the accrual of compensatory time served safety and economic goals; it helped ensure

that the airport would be adequately staffed and paid overtime work with overtime pay, rather than

additional vacation time. Like the other changes, this policy applied to all airport officers, not just

the Plaintiffs. Given such evidence, any prima facie case of retaliation demonstrated by the

Plaintiffs is rebutted by Defendants’ showing of legitimate, nondiscriminatory reasons for instituting

the allegedly adverse changes.

Pretext

Plaintiffs counter that Defendants’ stated reasons for implementing policy changes are mere

pretext for retaliation. To raise a genuine issue of fact as to pretext and defeat a summary judgment

motion under this position, the Plaintiffs must show that (1) the proffered reason had no factual

basis, (2) the proffered reason did not actually motivate Defendants’ action, or (3) the proffered

reason was insufficient to motivate the action. Cicero v. Borg-Warner Automotive, Inc., 280 F.3d

579, 589 (6th Cir. 2002). Because Plaintiffs provide no argument on their challenge of pretext, it

is waived. See United States v. Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004).

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 8

C. Section 1983/First Amendment Retaliation

Plaintiffs’ final claim charges Defendants with violating their First Amendment right to be

free from retaliation for speaking out against official policy and for filing a lawsuit. The district

court properly found that Plaintiffs failed to state a claim for relief under Section 1983.

To state a successful claim under 42 U.S.C. § 1983, Plaintiffs “must identify a right secured

by the United States Constitution and the deprivation of that right by a person acting under color of

state law.” Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (6th Cir. 1992). Plaintiffs need to

demonstrate that (1) the conduct at issue must have been under color of state law, (2) the conduct

caused a deprivation of constitutional rights, and (3) the deprivation occurred without due process

of law. Nishiyama v. Dickson County, 814 F.2d 277, 279 (6th Cir. 1987). Because Section 1983

is not itself a source of substantive rights, but only a method for vindicating federal rights elsewhere

conferred, a plaintiff must set forth specific constitutional grounds for asserting a Section 1983

claim. Graham v. Connor, 490 U.S. 386, 393-94 (1989); Upsher v. Grosse Pointe Pub. Sch. Sys.,

285 F.3d 448, 452 (6th Cir. 2002).

A plaintiff, in order to succeed on a First Amendment retaliation claim, must demonstrate

the following: “(1) that she was engaged in a constitutionally protected activity; (2) that the

defendant’s adverse action caused the plaintiff to suffer an injury that would likely chill a person of

ordinary firmness from continuing to engage in that activity; and (3) that the adverse action was

motivated at least in part as a response to the exercise of the plaintiff’s constitutional rights.”

Strouss v. Michigan Dep’t of Corrections, 250 F.3d 336, 345 (6th Cir. 2001) (citations omitted).

When the plaintiff is a public employee, she must show that her conduct was protected. Id. at 345-

46. First, she must demonstrate that her speech touched on matters of public concern. Id. at 346

(citing Connick v. Myers, 461 U.S. 138, 146 (1983)). Second, the employee’s interest “in

commenting upon matters of public concern” must outweigh “the interest of the State, as an

employer, in promoting the efficiency of the public services it performs through its employees.” Id.

(citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

Plaintiffs here, public employees, fail to demonstrate that their speech touched on matters

of public concern. They cite one newspaper article and one editorial in the Detroit News that

demanded return of the pagers to Plaintiffs in order to ensure the safety of Michigan residents

traveling through the airport. The article and editorial, however, were published after the fact of the

lawsuit’s filing, which initially contained only complaints about the Plaintiffs’ concerns regarding

non-payment of overtime while on call. Nothing in the FLSA claim indicates that Plaintiffs were

filing a lawsuit involving matters of public concern. See Connick, 461 U.S. at 146 (“When

employee expression cannot be fairly considered as relating to any matter of political, social, or

other concern to the community, government officials should enjoy wide latitude in managing their

offices.”). Thus Plaintiffs establish no First Amendment Free Speech Clause claim. Nor do they

establish a First Amendment Petition Clause claim, citing no authority to illustrate that public

employees enjoy the right to file lawsuits to redress grievances without commenting on matters of

public concern. See Nicklas v. Eagle, No. 99-2338, 45 F. App’x 385 (6th Cir. Aug. 22, 2002)

(unpublished).

Municipal Liability

Even if Plaintiffs were able to demonstrate that they were deprived of a federal constitutional

right as a result of the actions taken by airport management, they must also show that an official

policy or custom of Wayne County or the Airport was the “moving force” behind the constitutional

violation in order to recover from the municipality. See Liptak v. City of Niles, No. 98-4078, 1999

U.S. App. LEXIS 29984, at *16 (6th Cir. Nov. 10, 1999) (unpublished).

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 9

To recover against a municipality, the plaintiff must prove that the municipality itself caused

the constitutional violation; respondeat superior does not attach under Section 1983. Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 691, 694-95 (1978). In other words,

[A] local government may not be sued under § 1983 for an injury inflicted solely by

its employees or agents. Instead, it is when execution of a government’s policy or

custom, whether made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy, inflicts the injury that the government as an entity

is responsible under § 1983.

Id. at 694 (emphasis added). A municipality may be liable under Section 1983 for actions of its

authorized policymakers “where - and only where - a deliberate choice to follow a course of action

is made from among various alternatives by the official or officials responsible for establishing final

policy with respect to the subject matter in question.” Pembaur v. City of Cincinnati, 475 U.S. 469,

483 (1986); id. at 480-81 (noting that“‘official policy’ often refers to formal rules or understandings

- often but not always committed to writing - that are intended to, and do, establish fixed plans of

action to be followed under similar circumstances consistently and over time”). The policymaker

for whose conduct the plaintiff seeks to hold the municipality liable must possess final authority to

create official policy with respect to the action ordered. Id. at 481.

The Plaintiffs here have cited to no official policy or custom of Wayne County or the Airport

which resulted in their alleged constitutional injury. The actions taken by airport management in

this case do not constitute official policy. First, Director of Public Safety DeBeau, rather than

Wayne County decisionmakers or the Airport itself, made the decisions to remove the pagers,

provide SUVs to the K-9 unit, and modify use of compensatory time. While the Director of Public

Safety position carries with it considerable influence over the daily operations of the airport, it

cannot fairly be considered that of a “final policymaker”; DeBeau’s position does not make him a

“final policymaker unless [his] decisions are final and unreviewable and are not constrained by the

official policies of superior officials.” Waters v. City of Morristown, 242 F.3d 353, 362 (6th Cir.

2001) (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (plurality opinion)). Second,

the actions taken themselves, catalyzed in part by the Plaintiffs’ complaint about carrying the pagers

and rescinded in part after Plaintiffs complained about the removal of the flat rate mileage

reimbursement, lack the sort of force and finality characteristic of official municipal policy. Contra

City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) (City Council canceled license allowing

concert because of dispute over content of performance); Monell, 436 U.S. at 658 (agencies’ written

policy compelling pregnant employees to take unpaid leaves of absence before such leaves were

medically necessary deemed invalid).

Qualified Immunity

Plaintiffs complain that the district court erred in granting DeBeau qualified immunity from

liability. As discussed above, DeBeau’s position afforded him discretion in airport safety and

management decisions. “Government officials who perform discretionary functions are generally

entitled to qualified immunity and are protected from civil damages so long as ‘their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.’” Pray v. City of Sandusky, 49 F.3d 1154, 1157 (6th Cir. 1995) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)). Plaintiffs here fail to establish a violation of a clearly

established statutory or constitutional right. Moreover, because the allegedly adverse actions were

taken either to benefit the Plaintiffs or for sound business reasons, a reasonable person in DeBeau’s

position would not have known that those same actions would violate Plaintiffs’ rights. The district

court correctly found DeBeau immune from liability.

No. 04-2457 Adair, et al. v. Wayne County of Wayne, et al. Page 10

III. CONCLUSION

The district court properly concluded that the Plaintiffs failed to set forth a cause of action

under the FLSA and failed to prove a claim of retaliation in violation of it; that Wayne County and

the Airport Authority were not proper defendants pursuant to Plaintiffs’ Section 1983 claim; and that

Director of Safety DeBeau enjoyed qualified immunity from liability.

AFFIRMED.