Charles Wells, III v. City of Grosse Pointe Farms

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 14a0590n.06

Case No. 13-2127

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FILED

Aug 04, 2014

CHARLES L. WELLS, III, Chapter 7 Trustee, ) DEBORAH S. HUNT, Clerk

for the Bankruptcy Estate of Mary F. Arnone- )

Doran, )

) ON APPEAL FROM THE UNITED

Plaintiff-Appellee, ) STATES DISTRICT COURT FOR

) THE EASTERN DISTRICT OF

v. ) MICHIGAN

)

CITY OF GROSSE POINTE FARMS, )

)

Defendant, )

)

and )

)

GEORGE LOOSVELT, Sergeant, )

)

Defendant-Appellant. )

BEFORE: MERRITT, COOK, and DONALD, Circuit Judges.

COOK, Circuit Judge. Grosse Pointe Farms police officer George Loosvelt pulled over

Mary Arnone for a routine traffic stop. According to Arnone, Loosvelt sexually harassed her and

then falsely reported to her employer, the Henry Ford Health System (“HFHS”), that she

threatened him. The officer’s report prompted HFHS to fire her. After Arnone filed for

bankruptcy protection, Charles L. Wells, III, the trustee of her bankruptcy estate, sued the City

and Loosvelt, alleging constitutional violations under 42 U.S.C. § 1983 and state-law claims.

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Loosvelt moved for summary judgment, claiming entitlement to qualified and state-law

immunity. Citing genuine issues of material fact, the district court denied the motion. We affirm

in part, reverse in part, and remand.

I.

For the purposes of this interlocutory appeal of qualified immunity, we “take, as given,

the facts that the district court assumed when it denied summary judgment.” Johnson v. Jones,

515 U.S. 304, 319 (1995). Because the district court declined to specify which facts supported

its denial of qualified immunity, we review the record “to determine what facts the district court,

in the light most favorable to the nonmoving party, likely assumed.” Id. at 319. We therefore set

forth Arnone’s account of the events leading to this lawsuit.

On a June morning in 2010, Loosvelt observed Arnone making a left turn on a yellow

light on her way to HFHS Cottage Hospital, where she worked as a radiation oncology therapist.

Loosvelt pulled her over. During the encounter, Loosvelt allegedly stared at her chest while

swaying his hips.1 When Arnone could not produce proof of insurance, she begged Loosvelt,

“[p]lease don’t give me a ticket. Just throw me a bone.” In response, Loosvelt laughed and said

something like “I bet you would like a bone” as he walked to his patrol car, which Arnone

interpreted as sexual innuendo.

When Loosvelt returned with a citation for disregarding a yellow light and failure to

produce proof of insurance, Arnone lashed out with a stream of invective:

You are a fucking asshole. And you’re also a fucking pervert. And . . . it sickens

me to think that you can harass women, such as myself, on the public dime and

1

Examination of a video recording (without audio) of the traffic stop reveals that Loosvelt

made a body movement that could conceivably be characterized as “swaying his hips.” The

video does not show, however, whether Loosvelt stared at Arnone’s chest or, as Arnone later

alleged to HFHS officials, licked his lips.

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then go jack off in your car while I have got patients waiting on my table. I hope

I never see your dirty fucking face again. And I hope I never see anybody that

fucking looks like you.

Loosvelt then asked for her destination, and she responded “I’m just trying to get a few blocks

away to [Cottage Hospital]. I hope I never see you there either.”2

Approximately 15 to 30 minutes later, Loosvelt drove to Cottage Hospital and asked to

speak to someone from human resources. Anita Yeager, an HR employee, met with Loosvelt

and confirmed that Arnone worked there. Loosvelt reported that, during a traffic stop, Arnone

“was irate, swearing[,] and threatened him by saying, ‘Ya know what, I better not have you or

your family come across my table,” in addition to calling him an “asshole.” Loosvelt also said

that he considered Arnone’s tone threatening, and that he felt concerned about the treatment he

and his fellow officers would receive at Cottage Hospital.

When Yeager confronted her, Arnone denied threatening Loosvelt, saying she requested

only that he “[p]lease don’t come to where I work” because “she didn’t want to run into him

again.” (R. 39-6, Yeager Dep. at 150, 154.) Arnone maintained that she would never mistreat a

patient. She also told Yeager that Loosvelt looked at her chest while licking his lips.

HFHS terminated Arnone because of her reported behavior during the traffic stop,

concluding that she had threatened Loosvelt by saying “Ya know what, I better not have you or

your family come across my table,” and citing numerous violations of “HFHS Standards of

Conduct.” HFHS upheld Arnone’s termination over her numerous administrative appeals.

2

Not surprisingly, Loosvelt recalls the encounter differently. According to him, Arnone

concluded her diatribe by saying “I better not see you come across my table.” Arnone denies

saying these words. (R. 39-3, Arnone Dep. at 9798; R. 39-21, Employee Appeals Form at 4; R.

39-23, Nantais Appeal Response at 2.) Loosvelt assessed this alleged statement as a potential

threat.

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Shortly thereafter, Arnone filed for bankruptcy, listing as an asset a potential civil action

against the City and Loosvelt for police misconduct, and Wells sued on behalf of the bankruptcy

estate. As to Loosvelt, the complaint alleges violations of the First and Fourteenth Amendments

under 42 U.S.C. § 1983; state-law claims of defamation, tortious interference, and gross

negligence; and violation of Michigan’s Elliott-Larsen Civil Rights Act (“ELCRA”), Mich.

Comp. Laws § 37.2101, et seq.

Loosvelt and the City moved for summary judgment, asserting, inter alia, qualified and

statutory immunity. At the motion hearing, the district court granted the City summary judgment

but denied it with respect to Loosvelt, reasoning that “[t]here’s a factual question when you take

the pleadings and the exhibits most favorable to the Plaintiff.” Loosvelt appeals.

II.

In the qualified immunity context, we exercise interlocutory jurisdiction over the denial

of summary judgment only when the defendant’s appeal “involves the abstract or pure legal issue

of whether the facts alleged by the plaintiff constitute a violation of clearly established law.”

Bomar v. City of Pontiac, 643 F.3d 458, 461 (6th Cir. 2011). This limited jurisdiction reflects

the principle that on interlocutory appeal, the appellate court may resolve legal disputes, but not

factual disputes. Id. Accordingly, “the defendant must . . . be willing to concede the most

favorable view of the facts to the plaintiff for purposes of the appeal.” Id. But “even where the

defendant impermissibly relies on disputed facts on appeal[,] this court can ignore the

defendant’s attempts to dispute the facts and nonetheless resolve the legal issue raised, obviating

the need to dismiss the entire appeal for lack of jurisdiction.” Stoudemire v. Mich. Dep’t of

Corr., 705 F.3d 560, 56465 (6th Cir. 2013) (internal quotation marks and brackets omitted).

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We review de novo the denial of qualified immunity and Michigan statutory immunity.

See Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012). In the qualified immunity context,

we adopt the plaintiff’s version of the facts unless it “is blatantly contradicted by the record, so

that no reasonable jury could believe it.” Scott v. Harris, 550 U.S. 372, 380 (2007).

As a threshold matter, we note that Loosvelt defends by disputing a number of facts

rather than conceding Wells’s view, as he must for this appeal. First, he argues that we should

accept his contention that Arnone said “I better not see you come across my table” because two

HFHS employees said Arnone admitted as much to them. Arnone maintains she said only “I

hope I never see you [at Cottage Hospital].” Second, Loosvelt insists that the video of the

encounter clearly shows that he did not sexually harass Arnone. Yet, the video fails to

conclusively repudiate Arnone’s contentions. Third, Loosvelt quarrels with whether Wells can

establish a genuine dispute concerning Loosvelt’s motivation for reporting Arnone to HFHS

officials. A reasonable jury, however, could conclude that Loosvelt acted not out of concern for

himself, his family, and his colleagues, but in retribution for Arnone’s hostility. Accordingly,

our analysis assumes the facts as favoring Arnone’s account of events.

On appeal, Loosvelt faults the district court’s (1) denial of qualified immunity with

respect to the § 1983 claims; (2) denial of Michigan statutory immunity with respect to the state-

law tort claims; and (3) denial of summary judgment with respect to the ELCRA claim.

A. Qualified Immunity

“Through the use of qualified immunity, the law shields ‘government officials

performing discretionary functions . . . from civil damages liability as long as their actions could

reasonably have been thought consistent with the rights they are alleged to have violated.’”

Solomon v. Auburn Hills Police Dep’t, 389 F.3d 167, 172 (6th Cir. 2004) (quoting Anderson v.

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Creighton, 483 U.S. 635, 638 (1987)). Whether Loosvelt may enjoy qualified immunity hinges

on (1) “whether the facts, viewed in the light most favorable to the plaintiff, could support a

finding that the defendant has violated the plaintiff’s constitutional rights,” and (2) whether “the

defendant violated ‘clearly established’ constitutional rights.” Williams v. City of Grosse Pointe

Park, 496 F.3d 482, 485 (6th Cir. 2007). Wells bears the burden of showing that qualified

immunity should not shield Loosvelt. Rodriguez v. Passinault, 637 F.3d 675, 689 (6th Cir.

2011). Loosvelt asserts qualified immunity regarding Wells’s (1) First Amendment retaliation

claim; (2) Fourteenth Amendment equal protection claim; and (3) Fourteenth Amendment

procedural due process claim.

1. First Amendment Retaliation

A prima facie First Amendment retaliation claim requires the trustee here to establish

three elements: “(1) [that Arnone] engaged in constitutionally protected speech or conduct;

(2) an adverse action was taken against [her] that would deter a person of ordinary firmness from

continuing to engage in that conduct; [and] (3) . . . the adverse action was motivated at least in

part by [Arnone’s] protected conduct.” Dixon v. Univ. of Toledo, 702 F.3d 269, 274 (6th Cir.

2012). Loosvelt first argues that Arnone’s threat, “I better not see you come across my table,” is

not protected speech. See R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388 (1992) (“[T]hreats

of violence are outside the First Amendment.”). Yet, assuming as we must that Arnone said only

“I hope I never see you [at Cottage Hospital],” and drawing all inferences in her favor, Arnone

did not threaten Loosvelt. Rather, a factfinder could reasonably construe her statement only as a

desire not to encounter Loosvelt ever again.

Loosvelt next contends that an insufficient causal connection links Arnone’s termination

to his report of the encounter to Yeager. We look to whether Arnone’s termination was a

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reasonably foreseeable consequence of Loosvelt’s decision to report the alleged threat to an

HFHS HR representative. See Paige v. Coyner, 614 F.3d 273, 280 (6th Cir. 2010). Loosvelt

maintains that he did not “intend, desire, or demand Arnone’s termination,” and that HFHS

officials terminated her only after conducting an independent investigation. But “[e]ven if an

intervening third party is the immediate trigger for the plaintiff’s injury, the defendant may still

be proximately liable, provided that the third party’s actions were foreseeable.” Powers v.

Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d 592, 609 (6th Cir. 2007). A jury could

reasonably conclude that Arnone’s termination was a foreseeable consequence of Loosvelt’s

appearing at the hospital in full police uniform and demanding to speak with an HR

representative to report a threat by an HFHS employee involving her position at the hospital.

Indeed, an HFHS official acknowledged that “Loosvelt’s complaint, where he claimed

that . . . Arnone had threatened him, ultimately led to her termination.” Our procedural

requirement to credit Arnone’s account of the incident saddles Loosvelt with the violation of her

First Amendment right to freedom from state retaliation for protected speech.

Does precedent clearly establish this right? “The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it would be clear to a reasonable

officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.

194, 202 (2001).

Loosvelt denies a violation of Arnone’s clearly established First Amendment right,

pressing that “no case . . . stands for the proposition that police officials are barred from

interviewing authorized business representatives when investigating employment-related threats

of potential physical harm.” But this reframing of the issue fails to concede Arnone’s version of

the facts.

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As relevant here, the Supreme Court squarely holds that “the First Amendment protects a

significant amount of verbal criticism and challenge directed at police officers.” City of

Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987). “Speech is often provocative and challenging

. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to

produce a clear and present danger of a serious substantive evil that rises far above public

inconvenience, annoyance, or unrest.” Id. (alteration in original).

Loosvelt attempts to distinguish Houston and other cases cited by Wells on factual

grounds, but the court “need not find a decision on all fours.” Quigley v. Tuong Vinh Thai,

707 F.3d 675, 684 (6th Cir. 2013). “[E]ven in cases involving less than outrageous conduct,

‘officials can still be on notice that their conduct violates established law in novel factual

circumstances.’” Quigley, 707 F.3d at 684 (quoting Safford Unified Sch. Dist. No. 1 v. Redding,

557 U.S. 364, 37778 (2009)). Accepting Arnone’s account, ample precedent establishes the

right to be free from retaliation by a police officer offended by constitutionally-protected insults

and criticism. We thus affirm the district court’s denial of qualified immunity with respect to the

First Amendment retaliation claim.

2. Equal Protection

Wells advances both gender-discrimination and “class-of-one” theories of liability under

the Fourteenth Amendment’s equal protection clause. Wells first alleges that Loosvelt singled

out Arnone for disparate treatment—the alleged sexual harassment and the retaliatory report to

HFHS—because of her gender. “[T]he Equal Protection Clause . . . protects citizens from police

action . . . based on [a protected class].” Bennett v. City of Eastpointe, 410 F.3d 810, 818 (6th

Cir. 2005). Only Wells’s sexual-harassment gender-discrimination theory has merit.

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Our case law establishes that “sexual harassment . . . directed solely at the plaintiff

because she was a woman violates the equal protection clause.” Poe v. Haydon, 853 F.2d 418,

429 (6th Cir. 1988) (citation and internal quotation marks omitted). And Arnone alleges a

“classic case of sexual harassment, one in which it [is] obvious that the harassment was directed

solely at the plaintiff because she was a woman.” Huebschen v. Dep’t of Health & Soc. Servs.,

716 F.2d 1167, 1172 (7th Cir. 1983) (noting viability of equal protection claim based on sexual

harassment of a woman consisting of “embarrassing and belittling remarks . . . [and] sexual

advances”); see also Chaparro v. City of Chicago, Ill., No. 11 C 2659, 2012 WL 104629, at *3

(N.D. Ill. Jan. 12, 2012) (“[S]exual harassment . . . is a specialized type of equal protection claim

. . . [that] is by its nature usually directed against women.”) A reasonable jury could infer that

Loosvelt made sexually-suggestive gestures and uttered a sexually-charged comment to Arnone,

violating her equal protection right to freedom from gender discrimination.

But Wells fails to demonstrate that Loosvelt’s alleged retaliatory report to HFHS

amounted to gender discrimination. Nothing ties Loosvelt’s decision to report Arnone to

Arnone’s status as a woman. That is, Wells offers no evidence suggesting that Loosvelt would

treat male insulters differently.

Wells also asserts a “class-of-one” equal protection claim as first recognized by the

Supreme Court in Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam). “Class-

of-one claims are generally viewed skeptically because . . . [i]t is always possible for persons

aggrieved by government action to allege, and almost always possible to produce evidence, that

they were treated differently from others.” Loesel v. City of Frankenmuth, 692 F.3d 452, 46162

(6th Cir. 2012). Wells must overcome a “heavy burden” to prevail under this theory. Id. at 462.

Specifically, he “must show that [Arnone was] treated differently than those similarly situated in

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all material respects” and “that the adverse treatment [she] experienced was so unrelated to the

achievement of any combination of legitimate purposes that the court can only conclude that the

government’s actions were irrational.” Id.

Wells cannot sustain this burden because he offers no evidence that Loosvelt would treat

others differently when confronting the same factual scenario. See Braun v. Ann Arbor Charter

Twp., 519 F.3d 564, 57475 (6th Cir. 2008) (rejecting plaintiffs’ class-of-one equal protection

claim because they “fail[ed] to allege any specific examples of similarly situated individuals, let

alone evidence of [such] situations”); cf. Hanes v. Zurick, 578 F.3d 491, 492, 496 (7th Cir. 2009)

(upholding class-of-one claim against police officers when plaintiff alleged specific examples of

similarly situated individuals whom the police failed to arrest despite similar conduct).

3. Due Process

Wells asserts that Loosvelt violated Arnone’s Fourteenth Amendment procedural due

process right by maliciously and deliberately depriving her of her protected property interest in

her employment at HFHS and her reputational liberty interest. To establish a procedural due

process claim, Wells must show that Arnone had a constitutionally-protected property or liberty

interest. See Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 (1972). As Loosvelt

correctly points out, she had neither.

First, Arnone had no protected property interest in her at-will employment at HFHS.

Under Michigan law, “at-will employees . . . have no property interest in their continued

employment.” Pucci v. Nineteenth Dist. Court, 628 F.3d 752, 766 (6th Cir. 2010) (citing Lytle v.

Malady, 579 N.W.2d 906, 91011 (Mich. 1998)). Moreover, Michigan law espouses a “strong

presumption of employment at will.” Lytle, 579 N.W.2d at 911. An employee may rebut this

presumption in three ways:

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(1) [P]roof of a contractual provision for a definite term of employment or a

provision forbidding discharge absent just cause; (2) an express agreement, either

written or oral, regarding job security that is clear and unequivocal; or (3) a

contractual provision, implied at law, where an employer’s policies and

procedures instill a legitimate expectation of job security in the employee.

Id. (internal quotation marks and footnotes omitted).

Wells attempts to satisfy the third of these means, arguing that HFHS’s “formal multi-

step appeal process and . . . progressive discipline corrective action program” instilled a

legitimate expectation of job security in Arnone. Yet, HFHS’s corrective action policy expressly

provides that “this policy and its contents should not be construed to negate or in any way alter

the at-will employment relationship.” This disclaimer negates any contention that HFHS’s

corrective-action policy created a legitimate expectation of just-cause employment. See Lytle,

579 N.W.2d at 91112 (holding that employee handbook’s disclaimer that it did not alter at-will

nature of employee-employer relationship defeated plaintiff’s due process claim).

Second, though the complaint asserts an injury to Arnone’s liberty interest in her

reputation, Wells offers no appellate argument to support this theory. Wells’s brief also fails to

support her allegation that Loosvelt violated Arnone’s substantive due process rights. We

therefore deem these arguments forfeited. See United States v. Layne, 192 F.3d 556, 56667

(6th Cir. 1999).

B. Michigan Statutory Immunity

Loosvelt also appeals the district court’s denial of statutory immunity with respect to

Wells’s state-law claims for gross negligence, defamation, and tortious interference. We

exercise jurisdiction over Loosvelt’s interlocutory appeal of the denial of statutory immunity

under Mich. Ct. R. 7.202(6)(a)(v). See Bennett v. Krakowski, 671 F.3d 553, 560 (6th Cir. 2011).

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Genuine issues of material fact preclude Loosvelt’s claim to statutory immunity for each state-

law claim.

1. Gross Negligence

Michigan law defines gross negligence as “conduct so reckless as to demonstrate a

substantial lack of concern for whether an injury results.” Mich. Comp. Laws § 691.1407(8)(a).

Should a reasonable jury credit Arnone’s account, it could find Loosvelt grossly negligent

insofar as he made false and defamatory statements about Arnone to her employer in retribution

for her constitutionally-protected insults and criticism, as such actions could demonstrate a

substantial lack of concern for whether Arnone would lose her job.

Loosvelt insists that even if his conduct fit the gross-negligence standard, Wells cannot

establish that his acts proximately caused Arnone’s termination. For the purposes of statutory

immunity, Michigan law defines the proximate cause as “the one most immediate, efficient, and

direct cause preceding an injury.” Robinson v. City of Detroit, 613 N.W.2d 307, 311 (Mich.

2000). Viewing the evidence in the light most favorable to Arnone, a reasonable factfinder could

find that HFHS terminated Arnone as a direct result of Loosvelt’s making a false report about

Arnone to HFHS. Yeager attributed Arnone’s termination to Loosvelt’s report. And HFHS Vice

President Thomas Nantais said that “the reason she was being terminated was that, based on the

complaint made by the officer, it is not acceptable that any employee use her employment within

HFHS in a threatening manner.” (emphasis added).

2. Intentional Torts

Loosvelt also claims statutory immunity from Wells’s intentional-tort claims for

defamation and tortious interference with an advantageous business relationship. To establish

immunity from liability for the reporting to Arnone’s employer, Loosvelt must show that “he

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was acting in ‘good faith,’” meaning that he did not act “maliciously or with a wanton or reckless

disregard of the rights of another.” Odom v. Wayne Cnty., 760 N.W.2d 217, 225 (Mich. 2008).

Again, a reasonable jury could find that Loosvelt acted “maliciously, or for an improper

purpose.” Id. at 224 (internal quotation marks omitted).

C. Michigan ELCRA

Last, Loosvelt argues that Wells’s ELCRA claim must fail because it is predicated on

federal constitutional challenges, and Michigan law dictates that § 1983 provides the exclusive

remedy for such actions. But Wells correctly points out that we lack interlocutory jurisdiction to

consider this argument because Michigan governmental immunity applies only to tort claims, see

Mich. Comp. Laws § 691.1407, and so Mich. Ct. R. 7.202 provides no jurisdictional basis.

Loosvelt responds that the ELCRA claim is “inextricably intertwined” with Wells’s

§ 1983 claims, and thus the court may exercise pendent jurisdiction. “[S]uch jurisdiction only

may be exercised when the appealable issue at hand cannot be resolved without addressing the

nonappealable collateral issue.” Chambers v. Ohio Dep’t of Human Servs., 145 F.3d 793, 797

(6th Cir. 1998). Here, Wells’s ELCRA allegations stand separate from his federal constitutional

allegations (compare R. 24, Am. Compl. ¶¶ 7083 with id. ¶¶ 1942); Loosvelt’s contrary

characterization of Wells’s claims finds no support in the record. And none of the cases cited by

Loosvelt stands for the proposition that § 1983 necessarily supplants ELCRA claims. Indeed,

none even mentions the ELCRA. See Khan v. City of Flint, 800 N.W.2d 600, 600 (Mich. 2011)

(holding that § 1983 “is the exclusive remedy for alleged federal constitutional violations”);

Jones v. Powell, 612 N.W.2d 423, 427 (Mich. 2000) (per curiam) (no inferred damages remedy

for violations of Michigan Constitution against municipalities or government employees sued in

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individual capacities); Patton v. Vill. Of Cassopolis, No. 301754, 2012 WL 205832, at *4 (Mich.

Ct. App. 2012) (per curiam) (same).

III.

For these reasons, we AFFIRM in part and REVERSE in part. We REVERSE and

REMAND for the entry of summary judgment in favor of Loosvelt on all of Wells’s claims with

the exception of the First Amendment retaliation claim, the sexual-harassment equal protection

claim, and the state-law claims. With regard to those claims, we AFFIRM the denial of

summary judgment and REMAND for proceedings consistent with this opinion.

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MERRITT, Circuit Judge, dissenting. It seems to me in this case that the police

officer-appellant has just as much a First Amendment right to describe the plaintiff’s statements

and conduct when he stopped her as the plaintiff has to become angry and call him names. This

is just a case of two people becoming angry and letting words fly. The officer’s description of

the plaintiff’s angry words does not rise to the level of a First Amendment violation, and this

case should be stopped in its tracks now. It should not go on to a jury trial.

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