Petition for Writ of Certiorari — Pilarowski v. Macomb County

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Text

——7,

Supreme Court, US.

a FILED

88 85 JUL 11 1988

No. __ gOSEPH F. SPANIOL, JR

In Che

Supreme Court of the United States

@ctober Term, 1988

a ; ce

JOHN PILAROWSKI,

Petitioner,

-VS-

MACOMB COUNTY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

a 4 a

— AND APPENDIX —

JAMES G. GROSS (Attorney of Record) THOMAS H. BLEAKLEY

MACARTHUR, CHEATHAM & ACKER. P.C. BLEAKLEY & MCKEEN, P.C.

400 Buhl Building 1620 Ford Building

Detroit, Michigan 48226 Detroit, Michigan 48226

(313) 222-1400 (313) 961-4400

Interstate Brief & Record Company, a division of North American Graphics, Inc.

1629 West Lafayette Boulevard, Detroit, MI 48216 (313) 962-6230

QUESTIONS PRESENTED

WHETHER A COUNTY MAY BE HELD LIABLE FOR THE

UNCONSTITUTIONAL DISCHARGE OF AN EMPLOYEE

WHERE CERTAIN MEMBERS OF ITS LEGISLATIVE BODY

ACTIVELY ORCHESTRATE A COURSE OF CONDUCT IN-

TENDED TO EFFECTUATE THE UNCONSTITUTIONAL

DISCHARGE OF THAT EMPLOYEE, AND WHERE THE

ACTS NECESSARY TO THAT COURSE OF CONDUCT

WERE APPROVED BY THE LEGISLATIVE BODY WITH

KNOWLEDGE OF THE PURPOSE OF THAT COURSE OF

CONDUCT?

Il.

WHETHER PETITIONER INTRODUCED SUFFICIENT EVI-

DENCE TO WARRANT THE CONCLUSION THAT A

MAJORITY OF THE MEMBERS OF THE LEGISLATIVE

BODY WERE AWARE OF THE PURPOSE OF THE COURSE

OF CONDUCT ACTIVELY ORCHESTRATED BY CERTAIN

OF ITS MEMBERS?

rns i

PARTIES TO THE PROCEEDINGS

At trial and on appeal the case caption indicated that

this action was against the Macomb County Health

Department and the Macomb County Board of Com-

missioners. However, at trial the parties stipulated that

the only actual defendant was Macomb County itself.

The Court of Appeals noted that state of affairs in

footnote one of its majority opinion in this case.

Accordingly, Macomb County is listed in the caption of

this pleading as the only Respondent.

TABLE OF CONTENTS

Page(s)

Table of Authorities ......................... i-ii

a l

ee 2

Constitutional

and Statutory Provisions Involved ............ 3

Statement of the Case ...................... 4-1]

Reasons for Allowance of the Writ ........... 12-24

Argument:

WHETHER FORMAL ACKNOWLEDGEMENT BY

A MUNICIPALITY’S LEGISLATIVE BODY OF ITS

ILLEGAL MOTIVE FOR DISCHARGING AN EM-

PLOYEE IS A PRECONDITION FOR MUNICIPAL

LIABILITY UNDER 42 U.S.C. 1983 IS AN IMPOR-

TANT QUESTION OF FEDERAL LAW WHICH

SHOULD BE SETTLED BY THIS COURT. ... 14-24

ok a ty xa ok aus u ne oecccecnnn 25

TABLE OF AUTHORITIES

Page(s)

CASES:

Bennett v City of Slidell, 728 F2d 762 (5th Cir

SN is cn usin 5-00 00 ake eee eee ee eee 22

Canada v Pagendale, 635 F Supp 376 (ED Mo 1986) 19

City of St. Louis v Praprotnik, __ U.S. __, 108

[o ee... 17, 18, 21, 22

Donahue v Windsor Locks Board of Fire Com-

missioners, 834 F2d 54 (2nd Cir 1987) ...... 16

Fuchilla v Prockop, 682 F Supp 247 (DNJ 1987) 19

Kirschling v Lake Forest School District, — F

Pe 8 RP rere pone res 19-20

Monell v Department of Social Services, 436 U.S.

GO SR hk wk es Coban hae 11, 17 18, 20

Mount Healthy City Board of Education v Doyle,

GaP UE BPO PTT os koe eo eee 24

National Association of Greeting Card Pub-

lishers v United States Postal Service, 569 F2d

570 (DC Cir 1976), vacated on other grounds,

cet ee OF gs eer rere oe 16

Owen v City of Independence, 445 U.S. 622

(Nk ncuddntasn Se 16

Pembaur v City of Cincinnati, 475 U.S. 469 (1986) 17

Pilarowski v Brown, 76 Mich App 666; 257

wih t5 WOIT ss eee 6

Rizzo v Goode, 4.3 U.S. 362 (1976) ......... 20-21

Steele v Van Buren Public School District, 845

iy ge ES 8. ere rr rrr y 19

Page(s)

University of Tennessee v Elliott, 478 U.S. 788

DOG ok ccaddcctacgustacuneesusesenseaun ll

Webb v City of Chester, 813 F2d 824 (7th Cir

NG ne pete bs basen eee 20, 23

Woodley v Town of Nantucket, 645 F Supp 1365

(D Mase 1986) ...... cc ccccccccscsccecs 18-19

CONSTITUTION,

COURT RULES AND STATUTES:

ii Gs of | Seevrrrcr irr sie 3

US, Comet., Am XIV ..cccccccscsccccceseces 3

tse MOM... nciveusacneuenee 2

OO TURE. BREE jp ccccccccsscsscesesduanenens 4

OO TIRE BOGS ciccccvcesapecheewueeegeueunn 4

i CO OE iceceeeo case 3, 14

To the Honorable William H. Rehnquist,

Chief Justice of the United States,

and to the Honorable Associate Justices

of the United States Supreme Court:

Petitioner, John Pilarowski, respectfully prays that a

Writ of Certiorari be issued to review the opinion and

judgment of the United States Court of Appeals for the

Sixth Circuit entered March 15, 1988, in this matter.

OPINIONS BELOW

The opinion of the United States Court of Appeals

tor the Sixth Circuit in this matter is reported at 841

F2d 1281 (1988), and is reproduced in the Appendix

annexed to this Petition. (A-1). The reported opinion is

an amended version of one filed December 21, 1987!

The opinion of the District Court for the Eastern

District of Michigan is unreported and is reproduced in

the Appendix annexed to this Petition. {A-33).

The only amendment of the first opinion was the addition of

footnote 6 at page 10. (A-10-A-11)

JURISDICTION

The United States Court of Appeals for the Sixth

Circuit issued an opinion on December 21, 1987. (A-17).

That same day the parties were notified by the clerk of

that Court that a judgment had been entered in confor-

mity with that opinion. On January 4, 1988, Petitioner

filed a timely Petition for Rehearing En Banc. On

March 15, 1988, the Court of Appeals issued an

amended opinion (A-1) and entered a judgment in con-

formity therewith. (A-50). On April 12, 1988, the Court

of Appeals entered an order denying rehearing. (A-51).

This Petition for Certiorari was filed within 90 days of

that date. This Court's jurisdiction is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the Constitution of the

United States provides in pertinent part:

“Congress shall make no law ... abridging the

freedom of speech, or of the press .. .”

The Fourteenth Amendment to the Constitution of

the United States provides in pertinent part:

“No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any State

deprive any person of life, liberty, or property

without due process of law; nor deny to any

person within its jurisdiction equal protection of

the laws.”

Section 1983 of the Civil Rights Act of i871, 42

U.S.C. § 1983, reads as follows:

“Every person who, under color of any statute

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia

subjects, or causes to be subjected, any citizen of

the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity

or other proper proceeding for redress.”

STATEMENT OF THE CASE?

Petitioner filed this action claiming that Respondent

terminated his employment because of Petitioner’s

exercise of his First Amendment right to write “letters

to the editor” to the local newspapers concerning the

operation of the Macomb County Government. The

jurisdiction of the District Court was invoked under 28

U.S.C. §§ 1331 and 1343.

In December, 1974, Petitioner wrote a “letter to the

editor” of one of the local newspapers, the gist of which

was to support his supervisors’ request for additional

public health nurses. (352). At the time, Petitioner had

been employed for five years by the Macomb County

Health Department in a supervisory position as an

administrative assistant. (348).

Within a month of the aforementioned letter being

published, Robert Verkuilen, the Chairman of the Board

of Commissioners’, summoned Petitioner to his office.

(359). During a two-hour meeting, Mr. Verkuilen told

Petitioner that the commissioners did not appreciate

the “stupid garbage” he was writing to the newspapers,

and that if he did not desist he would be disciplined

“up to discharge”. (359).

Petitioner did not desist because he viewed the com-

missioners’ position as improper in that his status as a

2 The factual account herein presented is an abbreviated version

of the Statement of Facts in Petitioner’s Brief on Appeal to the

Court of Appeals for the Sixth Circuit. Parenthetical references not

preceded by “A” are to the Joint Appendix filed in that Court.

Because the predicate for the lower courts’ decisions was that the

evidence is to be viewed in the light most favorable to the Peti-

tioner (A-7, A-35-A-36), this account will give Petitioner the benefit

of all evidentiary conflicts.

3 The Board of Commissioners is the legislative body of

Macomb County.

county employee did not strip him of his First Amend-

ment right to free expression. (359-60). He did not write

the letters in his capacity as a departmental employee,

but rather as a private citizen concerned with public

issues and county government. (360-61).* As a result,

two months later he was summoned to a formal meet-

ing of the Board of Commissioners. (358). The Board

members discussed their displeasure with Petitioner’s

letter writing “at length” and asked him to stop. (217

358, 524). Petitioner responded that he had a right to

express his own opinion on his own time. (358). Fol-

lowing Petitioner's dismissal from the meeting, the

minutes reflect the following:

“Chairman Seguin asked if there were com-

ments concerning Mr. Pilarowski’s appearance

before the Board.

Mr. Walsh replied that there were no comments.

I don’t think we will bring the matter back to

this Board — Dr. Brown is his employer.”

(217).

On July 28, 1976, Dr. Brown, Petitioner’s supervisor,

told Petitioner that he was being terminated as the

result of a letter that he had written to Chairman Ver-

kuilen. (362, 523). Petitioner requested a hearing, which

was eventually set for September 7, 1976. (364). In the

interim, one of the commissioners raised the issue of

Petitioner’s termination at a Board meeting. (810). Com-

missioner Back moved to table the issue. (810). Later,

Dr. Brown told Petitioner that he would have been

running the Health Department if he had never written

a “letter to the editor”. (365, 528-29).

* Throughout this entire litigation it has never been disputed

that Petitioner’s letter writing was protected conduct within the

meaning of the First Amendment.

The Board of Health refused to reinstate Petitioner,

whereupon he filed an action in state court seeking

reinstatement, damages, and injunctive relief. The

Macomb County Circuit Court dismissed the action.

The Michigan Court of Appeals reversed and ordered the

trial court to issue an injunction ordering Respondent”

to continue Petitioner’s salary and benefits. Pilarowski

v Brown, 76 Mich App 666; 257 NW2d 211 (1977).° A

month later, Petitioner settled with Respondent for

reinstatement and back pay. (365-66).

Within three months of his return, both of his

superiors in the Health Department resigned. (367, 520).

As a result, Petitioner single-handedly administered the

entire department for approximately one year. (367-68).

During all of that time, he continued periodically

writing his “letters to the editor” concerning county

affairs.

In 1977, the Board of Commissioners created a

bureaucracy called the Health Services Administration

(hereinafter “HSA”), an umbrella agency which cen-

tralized the administration of the Health Department

and the Mental Health Department. (381-82, 630-33).

The Board appointed Norman Hill, a former Chairman

of the Board of Commissioners, as the Director of HSA.

(382, 611). The Board of Commissioners also created the

position of Deputy Administrator of HSA, the respon-

sibilities of which were those which Petitioner had

been performing for more than a year. (368-69, 631-32).

Petitioner applied for the position, but it was given to a

Mr. Daniel Lafferty. (370-71).

5 The Board of Commissioners and the Health Department were

also among the defendants in that action.

Petitioner’s letter writing continued. Mr. Lafferty

discussed the letters with Mr. Hill (731-32), who had a

staff person keeping a scrap book of Petitioner’s letters

as they were published (554-55, 757-58). During that

time, a number of commissioners expressed “concerns”

over the letters. (504, 805-09).

There followed in 1979 the successive creation of

three more HSA positions, the job duties of which were

taken from Petitioner and given to the new appointees.

(379, 492, 629, 632, 787-90). Finally, all of the

accounting and personnel employees who had worked

for Petitioner were transferred to HSA. (535-38, 543).

In late 1979, Mr. Lafferty discussed Petitioner’s 1976

firing with Dr. Brown, Petitioner’s former supervisor,

who suggested that Mr. Lafferty review the case mate-

rial from that incident. {747).

In 1980, the Board of Commissioners created six new

HSA administrative positions at a cost of almost

$200,000. (779).

Meanwhile, as his job responsibilities were reassigned

to other positions, Petitioner — who was qualified to

run the entire Health Department (528-29) (and, in fact,

had done so) — was denied access to any position other

than the one that he had. (407-11, 416-21). Eventually,

Petitioner’s job description was revised tu a non-

supervisory one with the only non-directed respon-

sibilities being “the processing of routine supply and

equipment orders and the inventory and control of

same” (244), i.e., counting pencils and paper.

In early 1981, Petitioner was on his union’s bargaining

committee with regard to the 1981-82 collective bar-

gaining agreement. (567). Before any proposals were on

the table, the County took the unusual position of

insisting on a news blackout from the inception of

negotiations. (569-70). Chairman Verkuilen himself

came to the bargaining table to insist that Petitioner

write no letters during the entire negotiations, and he

instructed Respondent's negotiators accordingly. (429).

During those negotiations, the County steadfastly

refused to agree to an agency shop unless the position

of Program Development Specialist was excluded from

the bargaining unit. (428). That position was the one

into which Petitioner could have “bumped” in the

event of a layoff. (429, 573-75).

At the conclusion of a December 16, 1981, committee

meeting at which a majority of the commissioners

were present, Mr. Back, who had recently become

Chairman, excused the secretary and asked her to close

the door behind her. (500). In the course of conversa-

tion, Commissioner Grove said:

“Mr. Hill [the Director of the HSA] ha|s| been in

there for three years and he still hasn’t gotten rid

of Pilarowski.”

(501). Chairman Back responded, “Well, things can be

worked out” or “There are ways to do that”. (502).

In August, 1982, in response to a request by Mr. Hill

citing budgetary concerns,’ the Board of Commis-

sioners laid off two clinic dentists and three clinic

dental assistants, terminated the County's arrangement

with six independent contractor dentists, and laid off

one administrator — Petitioner. (700, 717-18). The resolu-

Respondent's witness testified that the County anticipated

budgetary problems as early as 1981. (692).

In fact, at the time of Petitioner’s layoff, Respondent had a

$9,000,000 carryover from the previous fiscal year, from which fund

the Health Department had gotten extra money in the past. (780-

81). Furthermore, the Health Department ended the 1982 fiscal year

with a $212,000 surplus. (774).

tion did not identify the employees to be laid off. (710).

The meeting at which that action took place lasted

eight minutes. (326, 328, 745-46).

Petitioner was informed by letter that he was laid off

effective September 14, 1982, for budgetary reasons.

(262, 412). Despite Respondent's long standing policy of

reviewing previous employees’ qualifications when

positions became available (265, 813-16), Mr. Lafferty

told Petitioner at that time that he would not be recalled.

(816).

Petitioner unsuccessfully applied for three positions

subsequent to his layoff. (471-72). He was rejected for

two positions on the ground that he did not meet the

educational requirements. (425, 472-73). Petitioner

interviewed for the third position (for which he was

qualified), which was available as of October 1, 1982.

(409-10, 755-56). Respondent then eliminated that posi-

tion from the 1981-82 budget and reinstated it a year

later, after Petitioner’s seniority rights expired. (478-79,

491, 727-29 743-44).

Following Petitioner’s layoff, Chairman Back boasted

that “he got rid of the whole department to get rid of

him”. (295-96).

Less than two months after Petitioner’s layoff, Mr.

Lafferty requested administrative help from the Board

of Commissioners because the Health Department was

short handed. (___}.* The following month, Mr. Hill

left Respondent's employ, the HSA was abolished, and

two administrative assistants were moved back to the

Health Department. (704-06). Petitioner’s position was

never reconstituted. (719). There are now four or five

* A typographical error caused this portion of Mr. Lafferty’s

testimony (Tr 9/19/85, p. 75) to be omitted from the Joint Appendix

filed in the Court of Appeals.

_—_eezzaaatat

people performing tasks that Petitioner performed prior

to the HSA “reorganization”. (548-49).

Petitioner filed this action in the United States Dis-

trict Court for the Eastern District of Michigan,

Southern Division, on June 16, 1983. (1, 5). At the con-

clusion of an eight-day trial, the jury returned a unani-

mous verdict in the amount of $300,001. (836).? A

Judgment on Jury Verdict was entered September 24,

1985. (A-42).

On October 4, 1985, Respondent filed a Motion for

JNOV or Remittitur, renewing the argument that it had

made for a directed verdict to the effect that there was

insufficient evidence to warrant the conclusion that

Petitioner had been fired pursuant to a County policy

of suppressing constitutionally protected speech. (A-33).

On April 9, 1986, the District Court issued an opinion

and order granting judgment notwithstanding the ver-

dict for Respondent. (A-33).

The District Court ruled that there was sufficient

evidence to support the conclusions (1) that Petitioner

would not have been fired but for his letter writing, and

(2) that Respondent’s contention that Petitioner had

been laid off due to a budget deficit was pretextual. (A-

37). However, the Court then ruled that Petitioner had

failed to demonstrate any connection between his 1976

firing, Respondent’s attempt to silence him during the

1981 collective bargaining negotiations, the systematic

removal of his job responsibilities, the testimony con-

cerning the commissioners’ conversations and com-

ments concerning Mr. Hill “getting rid of” Petitioner,

9 Petitioner requested $300,000. The Program Development

Specialist position, which was eliminated from the bargaining unit

during the 1981-82 contract negotiations, was placed by Respondent

in a salary range $1.00 higher than Petitioner’s position, with the

result that he could not “bump” into it when he was laid off. (426).

and the testimony of two County employees that they

were afraid of expressing themselves for fear of retalia-

tion. (A-39-A-40). The Court cited Monell v Depart-

ment of Social Services, 436 U.S. 658 (1978), as

requiring judgment notwithstanding the verdict in the

circumstances. |A-37 — A-39).

The Court of Appeals affirmed, holding that the evi-

dence was insufficient “to demonstrate that the County

Board possessed the improper motive alleged when it

approved the necessary budget cuts affecting the Health

Department”. (A-7). Chief Judge Lively dissented on the

ground that the majority had misinterpreted Monell:

“The district court misapplied Monell and its

progeny in this case. Pilarowski was terminated

pursuant to an action of the ultimate governing

authority of Macomb County, its Board of Com-

missioners. There could be no doubt that this

was an act of the County, not that of an em-

ployee. Liability did not depend upon a finding

that the County had adopted a policy of suppres-

sing free speech.”

(A-15).*°

'0 Both the majority and dissenting opinions in the instant case

also addresed an issue raised sua sponte by the Court of Appeals: the

propriety of the District Court’s denial of Respondent's Motion for

Summary Judgment on the ground of collateral estoppel. (A-10-

A-13, A-16). The dispositive question on that issue is the preclusive

effect (if any) that Michigan law would accord the September 28, 1984,

Decision and Order of the Michigan Employment Relations Commis-

sion concerning Petitioner’s discharge. University of Tennessee v

Elliott, 478 U.S. 788 (1986). The dissent would have remanded the

case for reconsideration of that issue; the majority would have done

so had it not upheld the judgment notwithstanding the verdict.

Petitioner does not premise his Petition for Certiorari on that

issue, nor does he think it advisable for this Court to address it in

the present posture of this case. The issue is entirely governed by

state law, which, as the Court of Appeals implicitly recognized, has

not yet been fully considered by the District Court.

REASONS FOR ALLOWANCE OF THE WRIT

The importance of the constitutional right violated

in this case is self-evident. The right of a citizen to

comment upon and to criticize his government is per-

haps the most fundamental prerogative in a democratic

political system. At issue here is the showing necessary

to hold a local government accountable for retaliation

against a citizen who exercises that right.

Petitioner’s theory of liability against Respondent is

that its Board of Commissioners deliberately retaliated

against him for his exercise of his First Amendment

rights to criticize the County government, i.e., the

Board. When its first attempt to punish Petitioner by

discharging him'! was undone by the Michigan Court

of Appeals because of the patency of Respondent’s

unconstitutional motivation, the Board of Commis-

sioners set about achieving its goal with much greater

circumspection.

Following Petitioner’s reinstatement, the Board insti-

tuted a series of organizational and personnel changes

designed to systematically strip Petitioner of virtually

all of his job duties, the purpose being either to

humiliate him into quitting or to leave him vulnerable

to layoff when any budget cuts were made. The Board

also saw to it that the position into which Petitioner

could “bump” in the event of a layoff was removed

from the collective bargaining unit and placed into a

classification higher than Petitioner’s, thereby rendering

it unaveilable to Petitioner in the event of a layoff.

Once tut was accomplished, Petitioner’s discharge

There is no dispute but that the approval of the Board of

Commissioners was required for all organizational and personnel

changes. (Plaintiff-Appellant’s Brief on Appeal at 32; Plaintiff-

Appellant’s Brief on Appeal at 47-48).

could be accomplished any time the Board chose to cut

the Health Department budget.

The Board accomplished all of that, of course,

without adopting a formal resolution that it was

engaged in a course of conduct intended to punish

Petitioner for his First Amendment activity. It is the

absence of that formal declaration that was actually

(and necessarily) the basis for the lower courts’ disposi-

tions of this case. The trial court found that there was

sufficient evidence to warrant the jury’s (necessary)

finding that Petitioner would not have been fired but

for his letter writing and that Respondent’s contention

that Petitioner's layoff was due to a budget deficit was

pretextual. However, the trial court found that there

was insufficient evidence of the Board’s improper

motive when it approved the budget cut. The Court of

Appeals affirmed that finding.

Two questions are presented here. The first is

whether a municipality can be held liable under 42

U.S.C. 1983 for a course of conduct orchestrated by

certain members of its legislative body and executed by

a series of actions formally approved by that body with

knowledge by its members of the nefarious purpose of

that course of conduct. The second question is whether

Respondent introduced sufficient evidence to establish

the existence of the scheme and of the legislative

body’s knowledge of it.

Argument

WHETHER FORMAL ACKNOWLEDGEMENT BY A MUNI-

CIPALITY’S LEGISLATIVE BODY OF ITS ILLEGAL MOTIVE

FOR DISCHARGING AN EMPLOYEE IS A PRECONDITION

FOR MUNICIPAL LIABILITY UNDER 42 U.S.C. 1983 IS

AN IMPORTANT QUESTION OF FEDERAL LAW WHICH

SHOULD BE SETTLED BY THIS COURT.

Review of the record, the lower courts’ decisions, and

Defendant's Brief on Appeal below will remove any

doubt as to whether the Court of Appeals decision

actually imposed the above-described requirement on

Petitioner’s cause of action. That can be done most

quickly by pointing to the non-circumstantial evidence

which the lower courts held insufficient to support

recovery against Respondent:

(1) The displeasure and threats expressed by Chair-

man Verkuilen (375) and the Board itself (217,

358, 524) in 1975 as the result of Petitioner's

letter writing.

(2) The discharge of Petitioner in 1976 because of

his letter writing.

(3) The December, 1981, pre-layoff discussion be-

tween Commissioner Grove and Chairman Back,

in front of a majority of the Board of Commis-

sioners (500), that the HSA Director “still hasn't

gotten rid of Pilarowski” and the response that

“there are ways to work this out”. (501).

(4) Chairman Back’s post-layoff boast that he had

gotten rid of the whole department in order to

get rid of Petitioner. (295-96).

Respondent's response in the Court of Appeals was

that the statements of those individual commissioners

are of no evidentiary value because statements by indi-

vidual commissioners are not binding on the entire

Board, which can act only through a majority of its

members. (Defendant-Appellee’s Brief on Appeal at 40-

41). The Court of Appeals accepted that argument,

limiting the probative value of the evidence to no more

than the proposition that certain individual commis-

sioners may have acted with improper animus. (A-7 -

A-8).

Furthermore, the Court of Appeals limited its view of

the Board's action to nothing other than the Board’s

vote on the budget reduction. It gave no evidentiary

value whatsoever to the course of conduct which pre-

ceded it, or to the evidence supporting the proposition

that a majority of the Board was aware of that course of

action and its purpose.

In light of all of that, it is beyond cavil that it was

the absence of a formal resolution approved by a

majority of the Board acknowledging its illegal intent

which, in the opinion of the lower courts, doomed

Petitioner's cause of action against Respondent.

The importance of the issue presented derives from

both the nature of the underlying constitutional right

and from the import of this Court’s recent decisions

concerning the application of Monell with regard to the

identification of “policymakers” and the kind of action

by such entities which will give rise to municipal

liability.

The importance of the particular species of First

Amendment conduct involved here was recently noted

by the Second Circuit:

“As Thomas Emerson, the First Amendment

scholar noted, free speech is most valuable when it

relates to the exigencies of the time. T. Emerson,

the System of Freedom of Expression (1970).

Issues of ... governmental decisions made in

‘smoke-filled’ rooms are topical concerns in our

society. Speech regarding these issues functions

as a ‘check’ upon the abuses by government.

Moreover, it is in line with the greatest Amer-

ican traditions, practiced by distinguished liber-

tarians from Adams to Whitman, to inform the

public of inequities.”

Donahue v Windsor Locks Board of Fire Commis-

sioners 834 F2d 54, 58 (2nd Cir 1987). It is self-evident

that there can be no more dangerous violations of First

Amendment rights than those of a government attempt-

ing to silence its critics.

Such violations are even more pernicious when

effected by the power of a government which denies

that it is guilty of them. The reason is that until the

government itself is held responsible for its actions,

there is relatively little incentive for it to change its

conduct because the responsible policymakers can

avoid the electoral consequences of their actions by

pointing to a judicial determination that they were not

responsible. Furthermore, imposing liability solely on

the agents who carry out the government's policy

misses the mark in terms of placing the consequences

of such policies where they belong. Cf Owen v City of

Independence, 445 U.S. 622, 652 (1980).

The problem, then, is the imposition of liability upon

government “policymakers” who effectuate unconstitu-

tional retaliation without acknowledging it by way of

formal admission. The problem is complicated where,

as here, the only government “policymaker” is a board,

which acts formally only through a public vote of the

majority of its members. See, e.g., National Association

of Greeting Card Publishers v United States Postal

Service, 569 F2d 570, 600-01 n. 137 (DC Cir 1976), vac

ated on other grounds, 434 U.S. 989 (1977).

In the context of this Court’s decisions, the issue is

sharpened by the definition of “policymaker” for pur

poses of Monell. Most recently, a plurality of this Court

held that the identity of a “policymaker” is a question

of law governed by state law. City of St. Louis vy

Praprotnik, — U.S. —, 108 S.Ct. 915 (1988) (O’Connor

J.). In so holding, the plurality rejected the concept of a

de facto “policymaker” whose status turns upon the

practical finality of his decisions. Jd. As the concurring

opinion pointed out, the effect of such a definition

reduces the scope of a municipality’s liability to that

tor the acts of a relatively small number of potentia!

“policymakers.” Jd. (Brennan, J.).

Assuming that the Praprotnik plurality opinion repre.

sents the emerging rule, the presumed elimination of a

considerable number of persons as “policymakers” wil!

necessarily increase the focus upon and importance of

the next question: which actions of a “policymaker

will give rise to municipal liability?

The lack of clarity in this Court’s decisions on that

point is the product of two facially conflicting themes

of this Court's decisions following Monell.

On one hand, this Court has spoken of municipal!

liability in terms of the “official” acts or policies of its

policymakers. Monell, 436 U.S. at 685, 690-91, Pembaur

v City of Cincinnati, 475 U.S. 469, 480, 481 (1986

Praprotnik, 108 S.Ct. at 929.

On the other hand, this Court has recognized that

municipal liability can result from “customs and

usages” which have not received formal approval!

through the policymaking body’s official decision

making channels. Monell, 436 U.S. at 691; Praprotnik,

108 S.Ct. at 926, 927.

Overlaid on the language concerning “unofficial”

“customs and usages” is the plurality holding in Pem-

baur, apparently approved in Praprotnik, that a single

decision by a “policymaker” can constitute the basis

for municipal liability. Given that the “acts” involved

in the instant case were undoubtedly the “acts” of

Respondent (because only the Board could actually

effect the organizational and personnel actions taken),

and assuming that the “decision” involved was to

undertake the above-described course of conduct for the

purpose of punishing Petitioner for his letter writing,

the question is whether a municipality is insulated

from liability for a “decision” of its “policymaker”

simply because the “policymaker” refuses to admit

formally the illegal intent behind the course of conduct

involved.

A relatively recent District Court decision recognized

the problem posed by this Court’s opinions and sug-

gested a method of harmonizing the apparent tension

therein:

“The obvious tendency of these formulations [in

Monell, Pembaur, and Owen v City of Indepen-

dence, 445 U.S. 622 (1980)], endorsed by what

amounts to a majority of the justices, is to treat

as actionable under § 1983 only those policies

made up of specific, concrete actions taken with

some thought.

While this view is consistent with the Court’s

policy of carefully limiting liability to a munici-

pality’s ‘own’, and actual, misconduct, it is

at odds with another theme of Supreme Court

analysis: that the term ‘policy’ is not restricted

to formal or elaborate plans and declarations.”

+ + + +

“These two lines of analysis — one calling for a

conscious or deliberate choice, the other permit-

ting an unstated or customary practice — are

not necessarily incompatible. They can be recon-

ciled by insuring that the ‘custom or usage’ is

unambiguously established by official policy-

makers’ conduct and is not simply suggested by

isolated actions of some employee.”

Woodley v Town of Nantucket, 645 F Supp 1365, 1378

(D Mass 1986) (emphasis added).

Thus, the problem should be analyzed not in purely

formalistic terms of “official” promulgation, but rather

in terms of the type of conduct sufficient to warrant a

legitimate inference of the policymaker’s approval or

ratification, formal or otherwise.

A number of federal decisions have confronted situ-

ations similar to the one presented here and have

reached results inconsistent with that reached by the

Court of Appeals in the instant case.

First, federal courts have ruled that liability can be

imposed on a municipality on the basis of a “policy-

maker’s” decision even where the decision has not been

formally promulgated. Steele v Van Buren Public

School District, 845 F2d 1492 (8th Cir 1988) (policy-

maker’s tacit approval of employee's conduct sufficient);

Fuchilla v Prockop, 682 F Supp 247 (DNJ 1987) {single

act of agent can be “custom” in absence of formal

approval by policymaker); Canada v Pagendale, 635 F

Supp 376 (ED Mo 1986) (direct but non-formal involve-

ment of city counsel sufficient). See Kirschling v Lake

Forest School District, __ F Supp — (D Del 1988) (fact

question whether agent acting on instructions from

school board).

Second, the Seventh Circuit has upheld a jury verdict

against a city in the absence of a formally promulgated

policy, holding that the comments of one of three mem-

bers of the Board of Fire and Police Commissioners

constituted sufficient evidence upon which to premise

a finding of the requisite discriminatory intent on the

part of the (policymaking) Board. Webb v City of

Chester, 813 F2d 824 (7ti: Cir 1986).

There is a consistent line of passages from this

Court’s successive opinions in this area which appear

to provide support for the reasoning and the results in

the aforementioned decisions. Those passages demon-

strate that this Court has always recognized that a

governmental unit can effect violations of constitu-

tional rights in an informal manner; liability cannot be

avoided merely by the artifice of denying any formal

action.

“Moreover, although the touchstone of the

§ 1983 action against a government body is an

allegation that official policy is responsible for a

deprivation of rights protected by the Constitu-

tion, local governments, like every other § 1983

‘person’, by the very terms of the statute, may

be sued for constitutional deprivations visited

pursuant to governmental ‘custom’ even though

such custom has not received formal approval

through the body’s official decision making

channels.”

Monell, 436 U.S. at 690-91 (emphasis added).

“As the facts developed, there was no affirmative

link between the occurrence of the various inci-

dents of police conduct and the adoption of any

plan or policy by petitioners — express or other-

wise — showing their authorization or approval

of such misconduct.”

Rizzo v Goode, 423 U.S. 362, 371 (1976) (emphasis

added).

“When an official’s discretionary decisions are

constrained by policies not of that official’s

making, those policies, rather than the subordi-

nate’s departures from them, are the act of the

municipality. Similarly, when a subordinate’s

decision is subject to review by the municipal-

ity’s authorized policymakers, they have retained

the authority to measure the official’s conduct

for conformance with their policies. If the

authorized policymakers approve a subordi-

nate’s decision and the basis for it, their ratifica-

tion would be chargeable to the municipality

because their decision is final.”

¢ ¢ + F

“Simply going along with discretionary deci-

sions made by one’s subordinates, however, is

not a delegation to them of the authority to

make policy ... . It would be a different matter

if a particular decision by a subordinate was cast

in the form of a policy statement and expressly

approved by the supervising policymaker. It

would also be a different matter if a series of

decisions by a subordinate official manifested a

‘custom or usage’ of which the supervisor must

have been aware.”

Praprotnik, 108 S.Ct. at 926, 927 (first emphasis in

original) (second emphasis added).

Those passages are consistent with the frequently

cited Fifth Circuit en banc opinion in Bennett v City of

Slidell, 728 F2d 762 (5th Cir 1984):

“The council may violate rights of people by

direct orders or by setting a course of action for

city employees which, when followed by city

employees, interferes with someone's rights. The

council may set a course of action by its own

promulgation or by the acceptance of a course

set or conducted by city employees. In any event

the course of conduct, whether formally declared

or informally accepted, must be the policy of

the city government if it is to be the basis of

city liability.”

Id. at 767 (emphasis added).

The situation in the instant case is that a course of

conduct was conceived and directed by at least certain

identified members of the Board of Commissioners to

“get rid of” Petitioner by removing all of his job respon-

sibilities. Even the majority opinion in the Court of

Appeals recognized that the evidence was sufficient to

warrant that conclusion.

However, the Court of Appeals failed to acknowledge

the direct evidence demonstrating that at least a

majority of the Board of Commissioners actually knew

of the plan, and the quantity of circumstantial evidence

demonstrating that all of the members of the Board

“must have been aware” of what was occurring and

why, Praprotnik, 108 S.Ct. at 927, and “acceptied] [the]

course ... conducted by city employees”, Bennett,

supra at 767.”

\2 The reason for the majority’s failure in that regard was its

insistence on characterizing the “policy action” as consisting only

(concluded on page 23)

The point is that in circumstances such as obtained

here — where there was sufficient evidence from which

to infer the knowledge of the Board members con-

cerning the effect and purpose of the personnel and

organizational changes they were approving — there

should be no distinction drawn between those Board

members who actively instigated the course of conduct

and those who acquiesced in it with knowledge of its

purpose. To hold otherwise would impose upon indi-

vidual citizens an impossible burden of proof in the

context of non-formal and unadmitted illegal govern-

mental retaliation by a legislative or administrative

body of any sort. (In fact, it would virtually eliminate

any possibility of recovery in such circumstances.)

Compare Webb v City of Chester, supra.

Without elaborating on what has been set forth in the

Statement of the Case, supra, Petitioner submits that if

the absence of a formally promulgated County policy to

suppress free speech is not a bar to his claim, then he has

presented the most compelling package of circumstantial

and non-circumstantial evidence of illegal intent by a

board that this Court is likely to see in the context of

unformalized governmental retaliation. That being so,

this case is an almost ideal vehicle for more clearly

defining the parameters of the Monell rule in the con-

text of non-formalized conduct by a “policymaker”.

First, there is no question whether Petitioner’s

activity was conduct protected by the First Amend-

ment. That eliminates one area of contention.

(continued from page 22)

of the vote “to reduce the budget without specific reference to

plaintiff” (A-6) (emphasis added). By adopting that perspective, the

Court chose to ignore the Board’s “course of conduct” of

eliminating Petitioner’s job responsibilities and the admissions of

certain Board members concerning the motivation behind that

conduct.

" —

Second, there is no question but that the target of

Petitioner’s case was the Board of Commissioners. '*

There is, therefore, no issue as to whether this case

involved the actions of a “policymaker”, which elimi-

nates another frequently litigated issue.

Third, in light of the jury’s verdict and the trial court’s

opinion, there is no question concerning the causal rela-

tionship between Petitioner’s protected conduct and his

discharge under the test promulgated in Mount Healthy

City Board of Education v Doyle, 429 U.S. 274 (1977).

That eliminates yet another frequent area of disagreement.

All of that leaves one focused legal issue: whether

the illegal conduct here involved can be ascribed to the

County Board of Commissioners in the absence of a

formally promulgated policy. That issue is the area of

Monell’s development which most logically follows

next from this Court’s most recent decision.

Moreover, this case presents that issue in the context

of an underlying constitutional right of such undoubted

monumental significance as to pose the issue in its

starkest terms. Perhaps none of the panoply of constitu-

tional rights underlying section 1983 cases is of greater

systemic significance than the one involved here. If

municipalities can act with impunity in the manner

demonstrated by the eight days of evidence in this case,

this Court should make that clear. In the meantime,

the absence of a definitive ruling on that point and the

existence of the instant case as the law of the Sixth Cir-

cuit are certain to have a chilling effect on anyone who,

like Petitioner, is sufficiently interested in the operation

of his local government to wish to speak out. '

'3 The jury was instructed that the “policy” necessary for re-

covery had to be that of the County, which is made by its lawmakers,

and that it was not enough that Petitioner prove that “certain indi-

vidual members” of the Board took action against him. (A-52-A-54).

14 In this case, two witnesses testified that they were afraid of expres-

sing certain opinions concerning County government for fear of retaliation.

CONCLUSION

For the foregoing reasons Petitioner requests this

Court to grant a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

Respectfully submitted,

MACARTHUR, CHEATHAM & ACKER, PC.

By: /s/ JAMES G. GROSS

(Attorney of Record)

Attorneys for Petitioner

400 Buhl Building

Detroit, Michigan 48226

(313) 222-1400

BLEAKLEY & MCKEEN, PC.

By: THOMAS H. BLEAKLEY

Attorneys for Petitioner

1620 Ford Building

Detroit, Michigan 48226

(313) 961-4400

Dated: July 8, 1988

TABLE OF CONTENTS OF APPENDIX

PAGE

OPINION —

United States Court of Appeals

for the Sixth Circuit, 3/15/68 .. ow. cc wanes A-1

OPINION —

United States Court of Apreals

for tha Sia Cimemlt, TRBT/G? oo aiik ck ce ees: A-17

MEMORANDUM OPINION AND ORDER —

United States District Court,

ee Se ee I ks oo se sok eek A-33

JUDGMENT ON JURY VERDICT —

United States District Court,

ee re eae tar A-42

MEMORANDUM OPINION AND ORDER —

United States District Court,

EF ee ee rn sc a els bea we A-43

JUDGMENT AND MANDATE —

United States Court of Appeals for the Sixth Circuit,

Filed 3/15/88; Issued as Mandate 4/14/88 ...... A-50

ORDER DENYING REHEARING —

United States Court of Appeals

for the Sixth Cincult, @/12/88 . .. 5. oo econ A-51

PORTION OF JURY INSTRUCTIONS —

United States District Court,

BE Diy Se See ko ves one Dh bak ake A-52

aes adlamanes

In The

Supreme Court of the United States

———

October Term, 1988

—_—_

JOHN PILAROWSKI,

Petitioner.

-VS-

MACOMB COUNTY.

Respondent.

APPENDIX TO PETITION FOR CERTIORARI

A-1

OPINION

RECOMMENDED FOR FULL TEXT PUBLICATION

See, Sixth Circuit Rule 24

(United States Court of Appeals — Sixth Circuit’

(Decided and Filed March 15, 1988)

(JOHN PILAROWSKI, Plaintiff-Appellant, vy. MACOMB

COUNTY HEALTH DEPT. and MACOMB COUNTY BOARD

OF COMMISSIONERS, Defendants-Appellees — No. 86-

1423; ON APPEAL from the United States District Court

for the Eastern District of Michigan)

Before: LIVELY, Chief Judge,

WELLFORD, Circuit Judge,

and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge, delivered the opinion of the

court, in which CELEBREZZE, Senior Circuit

Judge, joined. LIVELY, Chief Judge, (pp. 13-16)*

delivered a seperate dissenting opinion.

WELLFORD, Circuit Judge.

This is an employment discrimination case, brought

pursuant to 42 U.S.C. § 1983, in which plaintiff

claimed he was discharged for exercising his First

Amendment right to freedom of speech. The jury re-

turned a verdict in favor of plaintiff, but the district

court set the verdict aside and entered judgment for the

defendants.' In granting judgment notwithstanding the

verdict, the district court found that plaintiff had tailed

to prove that his discharge was based on an unconstitu-

tional custom or policy of suppressing free speech

Before submitting the case to the jury, however, the

* {[Printer’s Note|: Cf pp. A-13 -A-16, infra.

' The parties stipulated that Macomb County is actually the

only defendant. (See plaintiff's brief, footnote one. |

A-2

district court denied the defendants’ motion for summary

judgment. Defendants maintained in the motion for

summary judgment that an administrative adjudication

of the Michigan Employment Relations Commission

precluded further inquiry into the reasons for Pilarowski’s

discharge under collateral estoppel principles.

Some five years after being employed as an adminis-

trative assistant in the Macomb County Health Depart-

ment, plaintiff began writing “letters to the editor,”

which were published in several local newspapers.

Many of the letters were critical of actions taken by the

Macomb County Board of Commissioners, the gov-

erning body of the county which controlled the health

department funding. In January 1975 Dr. Leland Brown,

Pilarowski’s immediate supervisor, advised him to stop

writing the critical letters to the papers, but Pilarowski

continued to do so. On July 28, 1976, Dr. Brown dis-

charged plaintiff for writing the letters. Plaintiff

brought suit in state court and ultimately was ordered

reinstated with back pay and benefits. Pilarowski v.

Brown, 76 Mich. App. 666, 257 NW.2d 211 (1977). After

plaintiff returned to work, Dr. Brown resigned. Plaintiff

continued sending faultfinding letters to the newspapers.

After his reinstatement plaintiff apparently assumed

additional responsibilities under a series of temporary

administrators of the health department. In 1978 the

State of Michigan enacted a new public health code

that required an extensive restructuring of the health

services in Macomb County. M.C.L.A. 333.1101 et seq.

The new code made significant changes in the method

and amount of state funding for the county health

department, requiring Macomb County to fund large

portions of its health-related expenditures that formerly

A-3

had been provided by automatic state disbursements. In

January 1978 Macomb County created an umbrella

agency, Health Services Administration (HSA), to central-

ize administration of both the county health department

and its department of mental health. In creating HSA the

county sought to strengthen administrative resources of

the health department generally, and to provide the

means for compliance with additional reporting require-

ments of the new code. Plaintiff was an unsuccessful

applicant for the position of director of HSA. Over the

next four years several new administrative positions were

created within HSA and filled by persons other than

Pilarowski. At trial, plaintiff contended that some of

these positions were created to reduce his respon-

sibilities. Plaintiff continued to write the same type of

letters to the editor during this period of transition.

In 1981 plaintiff was a member of his union’s bargain-

ing committee as the union and the county worked on a

collective bargaining agreement. The county contended

that there was an agreement for a news blackout during

negotiations, and that plaintiff violated the blackout by

publishing another letter to the editor. Plaintiff main-

tained that there had been no such agreement at the time

of the publication and that the county’s negotiator had

attempted to impose the blackout for the sole purpose of

stopping his letter writing.

One of the Commissioners, Dilber, testified that a

considerable time after the labor negotiations had con-

cluded in December of 1981, he overheard an informal

discussion between two other Commissioners, Beck

[sic, Back] and Grove, (the only discussion he had ever

heard concerning Pilarowski) indicating that the Health

Department “hasn't gotten rid of Pilarowski yet,” but

“there were ways to work this out.” Both Beck and

Grove denied that such a conversation ever took place.

A-4

In August 1982 the director of HSA proposed several

reductions in staff to avoid a projected budget deficit in

the Department of Health. If it occurred, such a deficit

would violate state law, and the Health Department

had exhausted its reserve of general funds. The

Macomb County Board of Commissioners adopted the

director’s recommendation for a reduction in the

budget, necessitating lay-offs.

The Health Department was not the only branch of

county government at the time affected by the budget

crisis and the need for reduction in staff. During the

prior year (1981-1982) 32 positions were eliminated in

the Health Department. In August of 1982 by a vote of

16 to 9, the Commissioners adopted a revised budget

whereby a number of Health Department positions

were designated for lay-offs. No names of any specific

individuals in the department were mentioned in the

motion to adopt an amended budget that would require

lay-offs in the Health Department. Plaintiff was the

only administrator in the Health Department subjected

to this lay-off; the other affected employees were

dentists and dental assistants. The budgetary action of

the Commissioners, however, did not name Pilarowski

as a person to be eliminated by reason of the reduction

in force.

Within a few months after Pilarowski was termi-

nated, HSA was abolished, and “plaintiff’s position was

never reconstituted ... four or five people [are now|

performing the tasks” which in whole or a [sic] part

had been assigned to plaintiff. (Plaintiff's brief, p. 15).

Before commencing the present action in district court

plaintiff appealed his discharge to the Michigan Employ-

2 Commissioner Dilber (plaintiff's witness) voted for the budget

adjustment and consequent lay-off requirement. Commissioner

Grove voted against the reduction.

A-5

ment Relations Committee (MERC). Following a hear-

ing, MERC rendered a decision finding that plaintiff

was not terminated because of his union activities, and

noted that the county had shown legitimate budgetary

concerns as a basis of its actions. Among other find-

ings, the administrative law judge found that “|t]he

record establishes that there was a need for economy on

the part of the County ... an absence of evidence of

animosity towards [Plaintiff] ... the elimination of

|Plaintiff’s position] was the result of County reorgani-

zation ... {and|] it is inconceivable that the County

Board of Commissioners undertook extensive reorgani-

zation ... as a pretext in order to eliminate [Plaintiff].”

Plaintiff did not challenge the findings of the ALJ or

appeal the MERC decision to the Michigan state courts

as he was permitted to do under Michigan procedure.

In addition, plaintiff grieved his discharge under pro-

visions of the collective bargaining agreement with

Macomb County. The arbitrator found that the eco-

nomic reasons given for plaintiff’s discharge were

authentic and reasonable and that there was no evi-

dence to support Pilarowski’s claim that he was termi-

nated for exercising his First Amendment rights. At the

arbitration hearing the argument presented by plaintiff

was that he had been intentionally discharged through

a “concerted effort by the Employer to get rid of him

for his letter writing and union activity.” J/A 297. Proof

of both activities, including the alleged brief discussion

between Commissioner Beck and Commissioner Grove

about getting rid of Pilarowski more than a year and a

half before the termination occurred, was presented to

the arbitrator. The collateral estoppel argument pre-

sented by defendants rested on their claim that the

unappealed MERC decision precluded further litigation

with respect to the good cause basis for plaintiff’s dis-

charge, and that this was further supported by the find-

A-6

ings of the arbitrator that there was good cause for the

discharge not related to Pilarowski’s letter writing and

statements made during prior labor negotiations.

Whether or not we adopt defendants’ argument that

plaintiff should be collaterally estopped from pursuing

his claim of an improper discharge because of his letter

writing activities, we find (as did MERC and the arbi-

trator) that the proof in this case is insufficient to

establish that plaintiff’s First Amendment activities

were established as a cause of his termination by the

Macomb County Commissioners. Assuming that the

alleged conversation did in fact take place between

Beck and Grove, two of the twenty-five commissioners,

more than a year and a half before the termination took

place, there is uncontradicted proof that budget con-

straints and cutbacks were necessary and mandated in

the Health Department and many other departments of

Macomb County in August of 1982, and that the Com-

missioners took budgetary action without specific refer-

ence to the individuals who would be affected by the

necessary budget reductions. One of the two commis-

sioners alleged to be attempting to “get rid” of plaintiff

voted against the reduction ordered. The policy action

taken by the County Board of Commissioners, then,

was to reduce the budget without specific reference to

plaintiff. In order for the Board of Commissioners to be

liable for the discharge, plaintiff must present credible

proof that the decision to discharge him was made “by

reason of his exercise of constitutionally protected First

Amendment freedoms.” Mt. Healthy City Board of

Education v. Doyle, 429 U.S. 274, 283-84 (1977); see

also Perry v. Sindermann, 408 U.S. 593, 597-98 (1972).

Plaintiff must, indeed, go further and carry the burden

to establish that his “conduct was a ‘substantial factor’

A-7

— or, to put it in other words, that it was a ‘motivating

factor’ in the Board’s decision. ...” Mt. Healthy, 429

US. at 287 (footnote omitted). We are satisfied that the

record fails to suppert plaintiff’s contention as to the

causation factor in this case with respect to the County

Board’s decision. Pilarowski’s evidence, given a favor-

able construction, was insufficient to demonstrate that

the County Board possessed the improper motive

alleged when it approved the necessary budget cuts

affecting the Health Department.?

The Supreme Court has determined that a local gov-

ernment may not be held liable under § 1983 based

upon a respondeat superior theory simply for having an

employee or employees who may commit a wrong. See

Monell v. New York City Dep’t of Social Services, 436

U.S. 658, 691 (1978). We accordingly conclude that the

district court was not in error in granting defendant’s

motion for judgment notwithstanding the jury verdict.

We reach this conclusion after reviewing the evidence

in the light most favorable to the plaintiff, including

the evidence of the previous successful state court suit

brought by Pilarowski against the County, his failure to

attain promotions, removal or reassignment of some of

his job responsibilities, and the proof concerning

alleged adverse feelings and expressions of several

Macomb County officials directed against plaintiff.

The district court found that plaintiff had presented

proof that “certain individuals who were not named as

3 It may be, although it is not necessary for us to decide this

issue, that certain individuals associated with defendant Macomb

County may have acted with the requisite improper animus with

respect to Pilarowski’s termination. Plaintiff's evidence was insuffi-

cient to establish, however, that Health Department officials Hill

and/or Lafferty were acting as employment policymakers for

Macomb County. Pembaur v. City of Cincinnati, 475 U.S. 469, 483

n. 12 (1986).

A-8

defendants” may have been motivated to terminate his

employment by reason of his letter writing activities,

but that they had not been the policymakers who

might bind the defendant County by reason of their

actions under Monell.* The district court also cited

Bennett v. City of Slidell, 728 E2d 762, 767 (5th Cir.),

reh’g denied, 735 F.2d 861 (1984), cert. denied, 472 US.

1016 (1985), in support of this ruling that the injury

suffered (the termination) was not shown to be “fairly

attributable to the government itself,” and that Macomb

County could not be held liable under “a respondeat

superior theory of liability.” He concluded that it had

not been demonstrated by the plaintiff that the com-

missioners, who were the County policymaking body,

had delegated to any employee in the Health Depart-

ment such authority with respect to termination of any

given individual within that department, including

Pilarowski.

We find no error in this aspect of the district court’s

decision, which we interpret to hold that evidence of

action taken by an individual non-policymaking super-

visor (not a defendant) was not to be considered the act

of the defendant in this case. Pilarowski thus was held

to have failed to establish the requisite causal link

between his First Amendment activities and the action

taken by the named defendant, the Macomb County

Board of Commissioners. See Mt. Healthy, supra, and

Monell, supra. In our view the record does not support

the claim that defendant Board used the budget cuts

as a subterfuge to violate Pilarowski’s constitutional

rights.

4 “Some individual Macomb County employees,” the district

court found, “were offended by Mr. Pilarowski’s letter writing

activities and seemingly sought to have his employment with the

Health Department terminated.”

A-9

Even if the district court’s decision were properly

interpreted, as indicated by the dissent, to suggest that

there was sufficient evidence to support a conclusion

that defendant Board, not unnamed individuals within

the Health Department, placed plaintiff on indefinite

lay-off on a pretextual basis, a different result would not

be mandated. In our view, the dissent’s interpretation is

not the correct one,’ but we would affirm the

judgment notwithstanding the verdict even if we were

to accept that interpretation. As previously indicated,

we find that the record simply is insufficient to support

a conclusion that the Board’s action in question in

adopting budget cuts was motivated by Pilarowski’s

letter writing activity, or that a desire to “get rid” of

him was a substantial factor or a causative factor in the

Board’s decision.

If a lower court’s judgment is proper, this court

can affirm, even if the court’s decision was based

upon an incorrect application of law. Dandridge

v. Williams, 397 U.S. 471, 475-76 n.6 (1970);

Helvering v. Gowran, 302 U.S. 238, 245 (1937).

United States v. Bank of Celina, No. 85-5050, slip op.

at n.5 (6th Cir. Feb. 25, 1986), disposition noted at 786

F.2d 1166 (1986). See also Stelos Co. v. Hosiery Motor-

° The district court concluded, among other things:

Having carefully examined this evidence, the Court finds

that as a matter of law, it is insufficient to establish lia-

bility as against the County of Macomb. The plaintiff

simply failed to demonstrate any connection between

these events [firing in 1976; seeking to “silence” him;

diminishing job responsibilities; and the Back-Grove Decem-

ber, 1971, discussion] and the Court is unwilling to assume

such a relationship.

{Emphasis added). The district court also pointed out the “unrelated

actions of a limited number of individual employees” in denying

respondeat superior liability against the County. (Emphasis added).

A-10

Mend Corp., 295 U.S. 237 (1935). See Neely v. Martin K.

Eby Const. Co., 386 U.S. 317 (1967); Howes v. Great

Lakes Press Corp., 679 F.2d 1023, 1029 (2d Cir.), cert.

denied, 459 U.S. 1038 (1982); cf Cansler v. Grove Manu-

facturing Co., 826 F.2d 1507 (6th Cir. 1987), as to this

court’s authority to direct or to approve granting of JNOV.

II.

We therefore find no error in the reversal of the jury

verdict for insufficiency of proof with respect to the

motivating cause of the budgetary cutback affecting

Pilarowski. Furthermore, while we do not find it neces-

sary to decide the collateral estoppel issue raised by

defendants, we are persuaded that defendants’ argument

in this respect has considerable merit.

Plaintiff, in the process of presenting his charge to

MERC that defendants were guilty of a violation of the

employment agreement, presented evidence of claimed

hostility towards him and that the budget crisis and

reorganization of the Health Department constituted a

pretextual basis for his discharge. The ALJ found in

considering plaintiff’s charge of wrongful termination

that there was a genuine economic necessity for cut-

backs and an “absence of animosity” towards Pilarowski.

Plaintiff did not appeal this administrative finding under

the MERC process. The findings that no contractual vio-

lation occurred, that just cause for Pilarowski’s discharge

existed, and that the discharge did nor arise out of ani-

mosity, being unappealed, may establish a basis for the pre-

clusive effect of such a decision. See Senior Accountants,

Analysts & Appraisers Association v. City of Detroit, 399

Mich. 449, 458, 249 NW22d 121, 124-25 (1976).°

turing Co., 425 Mich. 586, 391 NW. 2d 296 (1986), for the proposi-

(concluded on page A-11)

A-1l

In addition, plaintiff filed a grievance over his dis-

charge and pursued it to arbitration. Here again, in

arbitration plaintiff went into his letter writing procliv-

ity, his feeling that county officials resented this

activity and were therefore hostile towards him, and

that this hostility brought about an improper discharge

based upon exercise of his constitutional rights. The

arbitrator characterized plaintiff’s claim as being that

his “layoff was discriminatory and punitive” by reason

of the exercise of his freedom to make public his criti-

cism of Macomb County officials and their policies. J/A

295. He relied upon the Dilber proof as well as the

proof about animosity due to his union activity, which

was the same proof presented to the jury in this case.

Pilarowski relied on a claim of retaliation in his claim

before the arbitrator. Defendants’ position was that

plaintiff had failed to prove that his layoff “was improper.”

The arbitrator assumed that plaintiff’s contentions

about hostility may have had some basis, stating that

“|f]rom the nature and extensiveness of the Grievant's

letter-writing alone, it must be assumed that there was

at least some level of negative feelings toward him in

some quarters of the County administration.” He

decided, however, as we have concluded, that there was

no “persuasive evidence” of “association,” no causation

demonstrated between any “negative feelings” toward

Pilarowski and his layoff. While the arbitrator’s deci-

(continued from page A-10)

tion that collateral estoppel may not be accorded agency decisions

such as that of MERC, in cases of this nature. Walker, however, was

concerned with the nature of a Michigan circuit court’s statutory

review function and did not involve collateral estoppel effects of

MERC proceedings. The MERC decision in this case held that

plaintiff was not discharged for union activities or for animosity

related to his union activities. We did not render our decision in the

instant case based upon application of collateral estoppel principles

in any event, but indicated a remand may have been indicated.

A-12

sion may not constitute a bar to plaintiff’s raising

similar issues under § 1983, it strongly corroborates the

state MERC decision, adverse to Pilarowski, which held

the lay-off to be a justified action.

The collateral estoppel issue is properly before us

even though defendants did not file a cross-appeal.

They raised the issue in their motion for summary

judgment and it may present an alternative ground in

support of the district court judgment. United States v.

American Railway Express Co., 265 U.S. 425, 435-36

(1924).

In denying the defendants’ collateral estoppel-based

motion for summary judgment, the district court relied

principally on our decision in Elliott v. University of

Tennessee, 766 F.2d 982 (6th Cir. 1985). In Elliott we

held that unreviewed state administrative determina-

tions should not be given a preclusive effect in subse-

quent § 1983 actions. The Supreme Court reversed this

holding in University of Tennessee v. Elliott, 478 US.

788, 106 S. Ct. 3220 (1986). Although agreeing that

unreviewed state administrative determinations do not

preclude a trial de novo of Title VII claims in federal

court, the Supreme Court concluded that such determi-

nations may preclude a second trial of the same issues

in federal court where the claims are based on the

Reconstruction of Civil rights statutes, including

§ 1983. Resolution of this issue turns on the preclusive

effect to which the determination would be entitled in

the appropriate state courts. 106 S. Ct. at 3225-27.

The district court recognized that the Michigan

Supreme Court had held in Senior Accountants,

Analysts & Appraisers Association v. City of Detroit, 399

Mich. 449, 249 N.W.2d 121 (1976), that unreviewed fac-

tual determinations by MERC are entitled to preclusive

effect when an action in a state court rests on the same

A-13

questions of fact. However, the district court felt that

this court’s Elliott decision required a different rule

when the subsequent action is brought in federal court.

The district court did not have the benefit of the

Supreme Court's decision in Elliott or the decision in

Polk v. Yellow Freight System, Inc., 801 F.2d 190 (6th

Cir. 1986), when it denied the defendants’ motion for

summary judgment. In Polk we ruled that federal

courts must apply Senior Accountants and other Mich-

igan cases dealing with collateral estoppel-based preclu-

sion. Id. at 193-94.

Had we not decided that the grant of judgment not-

withstanding the verdict was warranted for the reasons

heretofore stated, we would have been called upon to

effect a remand so that the district court might have

reconsidered the collateral estoppel issue in light of the

authorities and reasons set herein set out.

We AFFIRM the judgment of the district court for

defendants.

LIVELY, Chief Judge, dissenting.

Since I believe the majority has seriously misapplied

an important rule of law, I respectfully dissent.

The majority concludes that there was insufficient

evidence that Pilarowski's “First Amendment activities

were established as a cause of his termination by the

Macomb County Commissioners.” Ante p. |A-6*].

However, that was not the basis of the district court's

granting the defendants’ motion for judgment notwith-

* (Printer’s insertion).

A-14

standing the verdict. The district court specifically

found that there was sufficient evidence “to support

the conclusion that defendants’ argument that plaintiff

was placed on indefinite layoff due to a budget deficit

was pretextual and that plaintiff would not have been

fired but for his letter writing activities.” Joint

Appendix at 209E. The motion for judgment notwith-

standing the verdict was granted because the plaintift

chose to sue only the county rather than individual

members of the Board of Commissioners or Health

Department and, in doing so, tailed to “identify the

existence of a governmental policy and connect that

policy to the particular injuries which he suffered.” Jd

This statement identified a requirement for main-

taining an action against a municipality under section”

1983. Monell v. New York City Dept. of Social Services,

436 U.S. 658, 694 (1978). However, I believe the district

court and the majority have misapplied the Monel!

“policy or custom” requirement in this case.

In Monell the Supreme Court overruled Monroe v.

Pape, 365 U.S. 167 (1961), insofar as it held that local

governments are not among the “persons” to which 42

U.S.C. § 1983 applies. In holding that municipalities

may be sued directly under § 1983 the Monell Court

limited liability to those situations where a local gov-

ernment acts pursuant to “official policy” or govern-

mental “custom.” It made clear, however, that a

“custom” need not have received formal approval of the

decision-making authority of the municipality. On the

other hand, the Supreme Court determined that a local

government may not be held liable under § 1983 based

on a respondeat superior theory for simply having an

empioyee who commits a wrong. Id. at 690-95. The

Court stated in Monell that it did not address “what

Pit

A-15

the full contours of municipal liability under § 1983

may be.” Id. at 695.

The Supreme Court has continued to explore the con-

tours of municipal liability since Monell. E.g., Owen v.

City of Independence, 445 U.S. 622 (1980) (an action of

city council rendered municipality liable); City of New-

port v. Fact Concerts, Inc., 453 U.S. 247 (1981) (same),

Oklahoma City v. Tuttle, 471 U.S. 808 (1985) (existence

of municipal policy of inadequate training may not be

inferred from misconduct of a single police officer).

Pembaur v. City of Cincinnati, —. U.S. —_, 106 §. Ct. 1292

(1986) (municipality may be liable for single act taken

subject to a course of action directed by those who estab-

lish governmental policy). The consistent theme through

all decisions since Monell is that municipal liability

under § 1983 attaches only to acts of a municipality as

distinguished from acts of municipal employees. Lia-

bility does not require a formal act of the governing

body of the municipality; it may be based on actions ot

other officials “whose acts or edicts may fairly be said

to represent official policy.” Pembaur, 106 S.Ct. at

1298-99, quoting Monell, 436 U.S. at 694.

The district court misapplied Monell] and its progeny

in this case. Pilarowski was terminated pursuant to an

action of the ultimate governing authority of Macomb

County, its Board of Commissioners. There could be no

doubt that this was an act of the county, not that of an

employee. Liability did not depend upon a finding that

the county had adopted a policy of suppressing tree

speech. Only four members of the Court in Pembaur

agreed on the authority that a “policymaker” must

possess when municipal liability is predicated on the

single act of such an official. However, six Justices

agreed to this statement:

No one has ever doubted, for instance, that a

municipality may be liable under § 1983 tor a

A-16

single decision by its properly constituted legis-

lative body — whether or not that body had

taken similar action in the past or intended to

do so in the future — because even a single deci-

sion by such a body unquestionably constitutes

an act of official government policy.

106 5.Ut. at 1298 (citations omitted). Pembaur teaches

that the acts of a properly constituted legislative body

necessarily reflect official government policy. It is only

when an alleged constitutional violation is caused by

the conduct of a municipal employee that a separate in-

quiry into the existence of a municipal policy or custom

is necessary in order to determine whether the act of

the employee can be properly attributed to the munici-

pality itself. Under this test, the single act of the

Macomb County Board of Commissioners “unquestion-

ably constitute|d| an act of official government policy.”

The district court erred in requiring plaintiff to demon-

strate the existence of an unconstitutional custom or

policy where the claimed deprivation of First Amend-

ment rights was based on an act of the legislative body of

the county. This case is similar in many respects to

Williams v. City of Valdosta, 689 F.2d 694 (11th Cir.

1982), where the court reversed the district court’s entry

of judgment notwithstanding the verdict. In Williams

the court of appeals applied Monell in a manner that

anticipated the Supreme Court's decision in Pembaur.

Since I believe that the district court’s erroneous view

of Monell was the sole basis for granting the defendants’

motion for judgment notwithstanding the verdict, |

would reverse the judgment of the district court and

remand with directions to reinstate the verdict unless

that court determines, upon reexamination of the issue,

that it erroneously denied the defendants’ motion for

summary judgment on collateral estoppel grounds.

A-17

’ OPINION

RECOMMENDED FOR FULL TEXT PUBLICATION

; : See, Sixth Circuit Rule 24

(United States Court of Appeals — Sixth Circuit)

(Decided and Filed December 21, 1987)

(JOHN PILAROWSKI, Plaintiff-Appellant, v. MACOMB

COUNTY HEALTH DEPT. and MACOMB COUNTY BOARD

OF COMMISSIONERS, Defendants-Appellees — No. 86-

1423; ON APPEAL from the United Srates District Court

for the Eastern District of Michigan!)

Before: LIVELY, Chief Judge,

WELLFORD, Circuit Judge,

and CELEBREZZE, Senior Circuit Judge.

WELLFORD, Circuit Judge, delivered the opinion of the

court, in which CELEBREZZE, Senior Circuit

Judge, joined. LIVELY, Chief Judge, (pp. 13-16)*

delivered a seperate dissenting opinion.

eet

WELLFORD, Circuit Judge.

This is an employment discrimination case, brought

pursuant to 42 U.S.C. § 1983, in which plaintiff

claimed he was discharged for exercising his First

Amendment right to freedom of speech. The jury re-

turned a verdict in favor of plaintiff, but the district

court set the verdict aside and entered judgment for the

defendants.' In granting judgment notwithstanding the

verdict, the district court found that plaintiff had failed

to prove that his discharge was based on an unconstitu-

tional custom or policy of suppressing free speech.

Before submitting the case to the jury, however, the

* [Printer’s Note]: Cf pp. A-29 -A-32, infra.

! The parties stipulated that Macomb County is actually the

only defendant. (See plaintiff's brief, footnote one.)

A-18

district court denied the defendants’ motion for summary

judgment. Defendants maintained in the motion for

summary judgment that an administrative adjudication

of the Michigan Employment Relations Commission

precluded further inquiry into the reasons for Pilarowski’s

discharge under collateral estoppel principles.

Some five years after being employed as an adminis-

trative assistant in the Macomb County Health Depart-

ment, plaintiff began writing “letters to the editor,”

which were published in several local newspapers.

Many of the letters were critical of actions taken by the

Macomb County Board of Commissioners, the gov-

erning body of the county which controlled the health

department funding. In January 1975 Dr. Leland Brown,

Pilarowski’s immediate supervisor, advised him to stop

writing the critical letters to the papers, but Pilarowski

continued to do so. On July 28, 1976, Dr. Brown dis-

charged plaintiff for writing the letters. Plaintiff

brought suit in state court and ultimately was ordered

reinstated with back pay and benefits. Pilarowski v.

Brown, 76 Mich. App. 666, 257 NW.2d 211 (1977). After

plaintiff returned to work, Dr. Brown resigned. Plaintiff

continued sending faultfinding letters to the newspapers.

After his reinstatement plaintiff apparently assumed

additional responsibilities under a series of temporary

administrators of the health department. In 1978 the

State of Michigan enacted a new public health code

that required an extensive restructuring of the health

services in Macomb County. M.C.L.A. 333.1101 et seq.

The new code made significant changes in the method

and amount of state funding for the county health

department, requiring Macomb County to fund large

portions of its health-related expenditures that formerly

A-19

had been provided by automatic state disbursements. In

January 1978 Macomb County created an umbrella

agency, Health Services Administration (HSA), to cen-

tralize administration of both the county health depart-

ment and its department of mental health. In creating

HSA the county sought to strengthen administrative

resources of the health department generally, and to

provide the means for compliance with additional

reporting requirements of the new code. Plaintiff was

an unsuccessful applicant for the position of director of

HSA. Over the next four years several new administra-

tive positions were created within HSA and filled by

persons other than Pilarowski. At trial, plaintiff con-

tended that some of these positions were created to

reduce his responsibilities. Plaintiff continued to write

the same type of letters to the editor during this period

of transition.

In 1981 plaintiff was a member of his union’s bar-

gaining committee as the union and the county worked

on a collective bargaining agreement. The county con-

tended that there was an agreement for a news blackout

by publishing another letter to the editor. Plaintiff

maintained that there had been no such agreement at

the time of the publication and that the county’s nego-

tiator had attempted to impose the blackout for the

sole purpose of stopping his letter writing.

One of the Commissioners, Dilber, testified that a

considerable time after the labor negotiations had con-

cluded in December of 1981, he overheard an informal

discussion between two other Commissioners, Beck

|sic, Back] and Grove, (the only discussion he had ever

heard concerning Pilarowski) indicating that the Health

Department “hasn’t gotten rid of Pilarowski yet,” but

“there were ways to work this out.” Both Beck and

Grove denied that such a conversation ever took place.

A-20

In August 1982 the director of HSA proposed several

reductions in staff to avoid a projected budget deficit in

the Department of Health. If it occurred, such a deficit

would violate state law, and the Health Department

had exhausted its reserve of general funds. The

Macomb County Board of Commissioners adopted the

director’s recommendation for a reduction in the

budget, necessitating lay-offs.

The Health Department was not the only branch of

county government at the time affected by the budget

crisis and the need for reduction in staff. During the

prior year (1981-1982) 32 positions were eliminated in

the Health Department. In August of 1982 by a vote of

16 to 9, the Commissioners adopted a revised budget

whereby a number of Health Department positions

were designated for lay-offs.* No names of any specific

individuals in the department were mentioned in the

motion to adopt an amended budget that would require

lay-offs in the Health Department. Plaintiff was the

only administrator in the Health Department subjected

to this lay-off; the other affected employees were

dentists and dental assistants. The budgetary action of

the Commissioners, however, did not name Pilarowski

as a person to be eliminated by reason of the reduction

in force.

Within a few months after Pilarowski was termi-

nated, HSA was abolished, and “plaintiff’s position was

never reconstituted ... four or five people [are now|

performing the tasks” which in whole or a [sic] part

had been assigned to plaintiff. (Plaintiff’s brief, p. 15).

Before commencing the present action in district court

plaintiff appealed his discharge to the Michigan Employ-

* Commissioner Dilber (plaintiff's witness) voted for the budget

adjustment and consequent lay-off requirement. Commissioner

Grove voted against the reduction.

een ee Pe ee

A-21

ment Relations Committee (MERC). Following a hear-

ing, MERC rendered a decision finding that plaintiff

was not terminated because of his union activities, and

noted that the county had shown legitimate budgetary

concerns as a basis of its actions. Among other find-

ings, the administrative law judge found that “ [t]he

record establishes that there was a need for economy on

the part of the County ... an absence of evidence of

animosity towards [Plaintiff] ... the elimination of

[Plaintiff’s position] was the result of County reorgani-

zation ... [and] it is inconceivable that the County

Board of Commissioners undertook extensive reorgani-

zation ... aS a pretext in order to eliminate [Plaintiff].”

Plaintiff did not challenge the findings of the ALJ or

appeal the MERC decision to the Michigan state courts

as he was permitted to do under Michigan procedure.

In addition, plaintiff grieved his discharge under pro-

visions of the collective bargaining agreement with

Macomb County. The arbitrator found that the eco-

nomic reasons given for plaintiff’s discharge were

authentic and reasonable and that there was no evi-

dence to support Pilarowski’s claim that he was termi-

nated for exercising his First Amendment rights. At the

arbitration hearing the argument presented by plaintiff

was that he had been intentionally discharged through

a “concerted effort by the Employer to get rid of him

for his letter writing and union activity.” J/A 297. Proof

of both activities, including the alleged brief discussion

between Commissioner Beck and Commissioner Grove

about getting rid of Pilarowski more than a year and a

half before the termination occurred, was presented to

the arbitrator. The collateral estoppel argument pre-

sented by defendants rested on their claim that the

unappealed MERC decision precluded further litigation

with respect to the good cause basis for plaintiff's dis-

charge, and that this was further supported by the find-

A-22

ings of the arbitrator that there was good cause for the

discharge not related to Pilarowski’s letter writing and

statements made during prior labor negotiations.

Il.

Whether or not we adopt defendants’ argument that

plaintiff should be collaterally estopped from pursuing

his claim of an improper discharge because of his letter

writing activities, we find (as did MERC and the arbi-

trator) that the proof in this case is insufficient to

establish that plaintiff’s First Amendment activities

were established as a cause of his termination by the

Macomb County Commissioners. Assuming that the

alleged conversation did in fact take place between

Beck and Grove, two of the twenty-five commissioners,

more than a year and a half before the termination took

place, there is uncontradicted proof that budget con-

straints and cutbacks were necessary and mandated in

the Health Department and many other departments of

Macomb County in August of 1983, and that the Com-

missioners took budgetary action without specific refer-

ence to the individuals who would be affected by the

necessary budget reductions. One of the two commis-

sioners alleged to be attempting to “get rid” of plaintiff

voted against the reduction ordered. The policy action

taken by the County Board of Commissioners, then,

was to reduce the budget without specific reference to

plaintiff. In order for the Board of Commissioners to be

liable for the discharge, plaintiff must present credible

proof that the decision to discharge him was made “by

reason of his exercise of constitutionally protected First

Amendment freedoms.” Mt. Healthy City Board of

Education v. Doyle, 429 U.S. 274, 283-84 (1977); see

also Perry v. Sindermann, 408 U.S. 593, 597-98 (1972).

Plaintiff must, indeed, go further and carry the burden

to establish that his “conduct was a ‘substantial factor’

A-23

— or, to put it in other words, that it was a ‘motivating

factor’ in the Board’s decision. ...” Mt. Healthy, 429

U.S. at 287 (footnote omitted). We are satisfied that the

record fails to support plaintiff’s contention as to the

causation factor in this case with respect to the County

Board’s decision. Pilarowski’s evidence, given a favor-

able construction, was insufficient to demonstrate that

the County Board possessed the improper motive

alleged when it approved the necessary budget cuts

affecting the Health Department.

The Supreme Court has determined that a local gov-

ernment may not be held liable under § 1983 based

upon a respondeat superior theory simply for having an

employee or employees who may commit a wrong. See

Monell v. New York City Dep’t of Social Services, 436

U.S. 658, 691 (1978). We accordingly conclude that the

district court was not in error in granting defendant’s

motion for judgment notwithstanding the jury verdict.

We reach this conclusion after reviewing the evidence

in the light most favorable to the plaintiff, including

the evidence of the previous successful state court suit

brought by Pilarowski against the County, his failure to

attain promotions, removal or reassignment of some of

his job responsibilities, and the proof concerning

alleged adverse feelings and expressions of several

Macomb County officials directed against plaintiff.

The district court found that plaintiff had presented

proof that “certain individuals who were not named as

3 It may be, although it is not necessary for us to decide this

issue, that certain individuals associated with defendant Macomb

County may have acted with the requisite improper animus with

respect to Pilarowski’s termination. Plaintiff’s evidence was insuffi-

cient to establish, however, that Health Department officials Hill

and/or Lafferty were acting as employment policymakers for

Macomb County. Pembaur v. City of Cincinnati, 475 U.S. 469, 483

n. 12 (1986).

A-24

defendants” may have been motivated to terminate his

employment by reason of his letter writing activities,

but that they had not been the policymakers who

might bind the defendant County by reason of their

actions under Monell.* The district court also cited

Bennett v. Slidell, 728 F.2d 762, 767 (5th Cir. 1984),

reh’g denied, 735 F.2d 861 (1984), cert. denied, 472 US.

1016 (1985), in support of this ruling that the injury

suffered (the termination) was not shown to be “fairly

attributable to the government itself,” and that Macomb

County could not be held liable under “a respondeat

superior theory of liability.” He concluded that it had

not been demonstrated by the plaintiff that the com-

missioners, who were the County policymaking body,

had delegated to any employee in the Health Depart-

ment such authority with respect to termination of any

given individual within that department, including

Pilarowski.

We find no error in this aspect of the district court's

decision, which we interpret to hold that evidence of

action taken by an individual non-policymaking super-

visor (not a defendant) was not to be considered the act

of the defendant in this case. Pilarowski thus was held

to have failed to establish the requisite causal link

between his First Amendment activities and the action

taken by the named defendant, the Macomb County

Board of C» missioners. See Mt. Healthy, supra, and

Monell, supra. In our view the record does not support

the claim that defendant Board used the budget cuts

as a subterfuge to violate Pilarowski’s constitutional

rights.

* “Some individual Macomb County employees,” the district

court found, “were offended by Mr. Pilarowski’s letter writing

activities and seemingly sought to have his employment with the

Health Department terminated.”

A-25

Even if the district court’s decision were properly

interpreted, as indicated by the dissent, to suggest that

there was sufficient evidence to support a conclusion

that defendant Board, not unnamed individuals within

the Health Department, placed plaintiff on indefinite

lay-off on a pretextual basis, a different result would aot

be mandated. In our view, the dissent’s interpretation is

not the correct one,” but we would affirm the

judgment notwithstanding the verdict even if we were

to accept that interpretation. As previously indicated,

we find that the record simply is insufficient to support

a conclusion that the Board’s action in question in

adopting budget cuts was motivated by Pilarowski’s

letter writing activity, or that a desire to “get rid” of

him was a substantial factor or a causative factor in the

Board’s decision.

if a lower court’s judgment is proper, this court

can affirm, even if the court’s decision was based

upon an incorrect application of law. Dandridge

v. Williams, 397 U.S. 471, 475-76 n.6 (1970);

Helvering v. Gowran, 302 U.S. 238, 245 (1937).

United States v. Bank of Salina, (6th Cir. No. 85-5050,

unreported, February 25, 1986, n. 5), disposition noted at

786 E2d 1166 (1986). See also Stelos Co. v. Hosiery Motor-

° The district court concluded, among other things:

Having carefully examined this evidence, the Court finds

that as a matter of law, it is insufficient to establish liability

as against the County of Macomb. The plaintiff simply failed

to demonstrate any connection between these events [firing

in 1976; seeking to “silence” him; diminishing job respon-

sibilities; and the Back-Grove December, 1971, discussion]

and the Court is unwilling to assume such a relationship.

(Emphasis added). The district court also pointed out the “unrelated

actions of a limited number of individual employees” in denying

respondeat superior liability against the County. (Emphasis added).

A-26

Mend Corp., 295 U.S. 237 (1935). See Neely v. Martin K.

Eby Const. Co., 386 U.S. 317 (1967); Howes v. Great

Lakes Press Corp., 679 F.2d 1023, 1029 (2d Cir. 1982), and

compare Cansler v. Grove Manufacturing Co., 826 F.2d

1507 (6th Cir. 1987), as to this court’s authority to direct

or to approve granting of JNOV.

Il.

We therefore find no error in the reversal of the jury

verdict for insufficiency of proof with respect to the

motivating cause of the budgetary cutback affecting

Pilarowski. Furthermore, while we do not find it neces-

sary to decide the collateral estoppel issue raised by

defendants, we are persuaded that defendants’ argument

in this respect has considerable merit.

Plaintiff, in the process of presenting his charge to

MERC that defendants were guilty of a violation of the

employment agreement, presented evidence of claimed

hostility towards him and that the budget crisis and

reorganization of the Health Department constituted a

pretextual basis for his discharge. The AL] found in

considering plaintiff's charge of wrongful termination

that there was a genuine economic necessity for cut-

backs and an “absence of animosity” towards Pilarowski.

Plaintiff did not appeal this administrative finding under

the MERC process. The findings that no contractual vio-

lation occurred, that just cause for Pilarowski’s discharge

existed, and that the discharge did nor arise out of ani-

mosity, being unappealed, may establish a basis for the pre-

clusive effect of such a decision. See Senior Accountants,

Analysts & Appraisers Association v. City of Detroit, 399

Mich. 449, 458, 249 NW.2d 121, 124-25 (1976).

In addition, plaintiff filed a grievance over his dis-

charge and pursued it to arbitration. Here again, in

arbitration plaintiff went into his letter writing procliv-

A-27

ity, his feeling that county officials resented this

activity and were therefore hostile towards him, and

that this hostility brought about an improper discharge

based upon exercise of his constitutional rights. The

arbitrator characterized plaintiff's claim as being that

his “layoff was discriminatory and punitive” by reason

of the exercise of his freedom to make public his criti-

cism of Macomb County officials and their policies. J/A

295. He relied upon the Dilber proof as well as the

proof about animosity due to his union activity, which

was the same proof presented to the jury in this case.

Pilarowski relied on a claim of retaliation in his claim

before the arbitrator. Defendants’ position was that

plaintiff had failed to prove that his layoff “was improper.”

The arbitrator assumed that plaintiff's contentions

about hostility may have had some basis, stating that

“{flrom the nature and extensiveness of the Grievant's

letter-writing alone, it must be assumed that there was

at least some level of negative feelings toward him in

some quarters of the County administration.” He

decided, however, as we have concluded, that there was

no “persuasive evidence” of “association,” no causation

demonstrated between any “negative feelings” toward

Pilarowski and his layoff. While the arbitrator’s deci-

sion may not constitute a bar to plaintiff's raising

similar issues under § 1983, it strongly corroborates the

state MERC decision, adverse to Pilarowski, which held

the lay-off to be a justified action.

The collateral estoppel issue is properly before us

even though defendants did not file a cross-appeal.

They raised the issue in their motion for summary

judgment and it may present an alternative ground in

support of the district court judgment. United States v.

American Railway Express Co., 265 U.S. 425, 435-36

(1924).

A-28

In denying the defendants’ collateral estoppel-based

motion for summary judgment, the district court relied

principally on our decision in Elliott v. University of

Tennessee, 766 F.2d 982 (6th Cir. 1985). In Elliott we

held that unreviewed state administrative determina-

tions should not be given a preclusive effect in subse-

quent § 1983 actions. The Supreme Court reversed this

holding in University of Tennessee v. Elliott, —_ U.S.

—., 106 S. Ct. 3220 (1986). Although agreeing that un-

reviewed state administrative determinations do not

preclude a trial de novo of Title VII claims in federal

court, the Supreme Court concluded that such determi-

nations may preclude a second trial of the same issues

in federal court where the claims are based on the

Reconstruction of Civil rights statutes, including

§ 1983. Resolution of this issue turns on the preclusive

effect to which the determination would be entitled in

the appropriate state courts. 106 S. Ct. at 3225-27.

The district court recognized that the Michigan

Supreme Court had held in Senior Accountants,

Analysts & Appraisers Ass'n v. City of Detroit, 399 Mich.

449 249 NW.2d 121 (1976), that unreviewed factual deter-

minations by MERC are entitled to preclusive effect

when an action in a state court rests on the same

questions of fact. However, the district court felt that

this court’s Elliott decision required a different rule

when the subsequent action is brought in federal court.

The district court did not have the benefit of the

Supreme Court's decision in Elliott or the decision in

Polk v. Yellow Freight System, Inc., 801 E2d 190 (6th

Cir. 1986), when it denied the defendants’ motion for

summary judgment. In Polk we ruled that federal

courts must apply Senior Accountants and other Mich-

igan cases dealing with collateral estoppel-based preclu-

sion. Id. at 193-94.

ro yee ee

A-29

Had we not decided that the grant of judgment not-

withstanding the verdict was warranted for the reasons

heretofore stated, we would have been called upon to

effect a remand so that the district court might have

reconsidered the collateral estoppel issue in light of the

authorities and reasons set herein set out.

We AFFIRM the judgment of the district court for

defendants.

LIVELY, Chief Judge, dissenting.

Since I believe the majority has seriously misapplied

an important rule of law, I respectfully dissent.

The majority concludes that there was insufficient

evidence that Pilarowski’s “First Amendment activities

were established as a cause of his termination by the

Macomb County Commissioners.” Ante p. |A-22° |.

However, that was not the basis of the district court's

granting the defendants’ motion for judgment notwith-

standing the verdict. The district court specifically

found that there was sufficient evidence “to support

the conclusion that defendants’ argument that plaintiff

was placed on indefinite layoff due to a budget deficit

was pretextual and that plaintiff would not have been

fired but for his letter writing activities.” Joint

Appendix at 209E. The motion for judgment notwith-

standing the verdict was granted because the plaintiff

chose to sue only the county rather than individual

members of the Board of Commissioners or Health

Department and, in doing so, failed to “identify the

existence of a governmental policy and connect that

* (Printer’s insertion).

A-30

policy to the particular injuries which he suffered.” /d.

This statement identified a requirement for main-

taining an action against a municipality under section

1983. Monell v. New York City Dept. of Social Services,

436 U.S. 658, 694 (1978). However, I believe the district

court and the majority have misapplied the Monell

“policy or custom” requirement in this case.

In Monell the Supreme Court overruled Monroe v.

Pape, 365 U.S. 167 (1961), insofar as it held that local

governments are not among the “persons” to which 42

U.S.C. § 1983 applies. In holding that municipalities

may be sued directly under § 1983 the Monell Court

limited liability to those situations where a local gov-

ernment acts pursuant to “official policy” or govern-

mental “custom.” It made clear, however, that a

“custom” need not have received formal approval of the

decision-making authority of the municipality. On the

other hand, the Supreme Court determined that a local

government may not be held liable under § 1983 based

on a respondeat superior theory for simply having an

employee who commits a wrong. Id. at 690-95. The

Court stated in Monell that it did not address “what

the full contours of municipal liability under § 1983

may be.” Id. at 695.

The Supreme Court has continued to explore the con-

tours of municipal liability since Monell. E.g., Owen v.

City of Independence, 445 U.S. 622 (1980) (an action of

city council rendered municipality liable); City of New-

port v. Fact Concerts, Inc., 453 U.S. 247 (1981) (same);

Oklahoma City v. Tuttle, 471 U.S. 808 (1985) (existence

of municipal policy of inadequate training may not be

inferred from misconduct of a single police officer);

Pembaur v. City of Cincinnati, __ U.S. —, 106 S. Ct. 1292

Hee cre ene a a ee D-

oh, SOAS ELMER TIES UO NSA SNS DAA SE

Re nat Bile «ate a ow

A-31

(1986) (municipality may be liable for single act taken

subject to a course of action directed by those who

establish governmental policy). The consistent theme

through all decisions since Monell is that municipal

liability under § 1983 attaches only to acts of a munici-

pality as distinguished from acts of municipal em-

ployees. Liability does not require a formal act of the

governing body of the municipality; it may be based on

actions of other officials “whose acts or edicts may

fairly be said to represent official policy.” Pembaur, 106

S.Ct. at 1298-99, quoting Monell, 436 US. at 694.

The district court misapplied Monell and its progeny

in this case. Pilarowski was terminated pursuant to an

action of the ultimate governing authority of Macomb

County, its Board of Commissioners. There could be no

doubt that this was an act of the county, not that of an

employee. Liability did not depend upon a finding that

the county had adopted a policy of suppressing free

speech. Only four members of the Court in Pembaur

agreed on the authority that a “policymaker” must

possess when municipal liability is predicated on the

single act of such an official. However, six Justices

agreed to this statement:

No one has ever doubted, for instance, that a

municipality may be liable under § 1983 for a

single decision by its properly constituted legis-

lative body — whether or not that body had

taken similar action in the past or intended to

do so in the future — because even a single deci-

sion by such a body unquestionably constitutes

an act of official government policy.

106 S.Ct. at 1298 (citations omitted). Pembaur teaches

that the acts of a properly constituted legislative body

necessarily reflect official government policy. It is only

when an alleged constitutional violation is caused by

A-32

the conduct of a municipal employee that a separate in-

quiry into the existence of a municipal policy or custom

is necessary in order to determine whether the act of

the employee can be properly attributed to the munici-

pality itself. Under this test, the single act of the

Macomb County Board of Commissioners “unquestion-

ably constitute/d] an act of official government policy.”

The district court erred in requiring plaintiff to demon-

strate the existence of an unconstitutional custom or

policy where the claimed deprivation of First Amend-

ment rights was based on an act of the legislative body of

the county. This case is similar in many respects to

Williams v. City of Valdosta, 689 F.2d 694 (11th Cir.

1982), where the court reversed the district court’s entry

of judgment notwithstanding the verdict. In Williams

the court of appeals applied Monell in a manner that

anticipated the Supreme Court’s decision in Pembaur.

Since I believe that the district court’s erroneous view

of Monell was the sole basis for granting the defendants’

motion for judgment notwithstanding the verdict, I

would reverse the judgment of the district court and

remand with directions to reinstate the verdict unless

that court determines, upon reexamination of the issue,

that it erroneously denied the defendants’ motion for

summary judgment on collateral estoppel grounds.

A-33

MEMORANDUM OPINION AND ORDER

(United States District Court —

Eastern District of Michigan —

Southern Division)

(Issued April 9, 1986)

{JOHN PILAROWSKI, Plaintiff, -vs- MACOMB COUNTY

HEALTH DEPARTMENT and MACOMB COUNTY BOARD

OF COMMISSIONERS, Defendants — CIVIL ACTION

NO. 83-9064)

At a session of said Court held in the Federal Building,

Port Huron, Michigan on the 9th day of April, 1986.

PRESENT: HONORABLE JAMES HARVEY,

United States District Judge.

This case is now before the Court on defendants’

motion for a judgment notwithstanding the verdict.

The question raised by defendants’ motion is whether

the proofs introduced into evidence at trial by plaintiff

are sufficient, as a matter of law, to support a verdict

against the County of Macomb. Specifically, defendants’

motion raises the question of whether plaintiffs’ proofs

were adequate to support a finding that plaintiff's em-

ployment with the Macomb County Health Depart-

ment was terminated pursuant to an unconstitutional

custom or policy of Macomb County of suppressing

constitutionally protected speech. Having carefully

considered the arguments of the parties regarding this

issue, the Court finds that, as a matter of law,

plaintiff's proofs were insufficient to support a verdict

against the County of Macomb and therefore grants

defendants’ motion for a judgment notwithstanding the

verdict.

A-34

FACTUAL BACKGROUND

Plaintiff John Pilarowski is a resident of Macomb

County, Michigan who has worked for the Macomb

County Health Department as an administrative assis-

tant on two occasions. Mr. Pilarowski was initially

employed by the Health Department from 1969 to

1976. During that time, the plaintiff offended various

members of the Macomb County Board of Commis-

sioners and his supervisor, Dr. Brown, by writing

numerous letters to local newspapers criticizing various

local governmental officials. In 1976, Mr. Pilarowski’s

employment with the Health Department was termi-

nated. See Pilarowski v. Brown, 76 Mich. App. 666

(1977).

Following his firing, Mr. Pilarowski sued Dr. Brown

and the Macomb County Health Department claiming

that his employment had been unconstitutionally ter-

minated in response to his letter writing activities. The

Michigan Court of Appeals agreed with the plaintiff

and in 1977 ordered Mr. Pilarowski reinstated in his job

at the Health Department. Id.

Mr. Pilarowski returned to work in 1977 but,

nevertheless, continued his letter writing activities. Mr.

Pilarowski remained in his job until September 15,

1982 when he was placed on indefinite layoff. Plaintiff’s

placement on indefinite layoff came about when the

Board of Commissioners voted to approve various

budget cuts in order to cure a projected deficit of

$315,000.00. These budget cuts were recommended to

the Board of Commissioners by Mr. Hill and Mr.

Lafferty of the Health Department. The evidence pre-

sented by the plaintiff does not reveal either that the

Board of Commissioners as a whole was aware that

plaintiff's job in particular would be affected or that the

Sih Danette HA tse a he er:

A-35

Board took this action to silence the plaintiff. The

record would support a finding that Mr. Lafferty, Mr.

Hill and perhaps Commissioners Grove and Back indi-

vidually desired to have the plaintiff fired because of

the plaintiff’s letter writing activities. Nevertheless,

their objective was not shared by the Board of Commis-

sioners as a whole.

Believing that he had been fired again in response to

his letter writing activities, the plaintiff initiated this

suit. The case was tried to a jury which returned a

verdict in plaintiff's favor in the amount of $301,000.00.

LEGAL STANDARD

The standard for granting a judgment notwith-

standing the verdict is the same as for granting a

motion for a directed verdict.

The issue raised by a motion for a judgment

n.o.v. is whether there is sufficient evidence to

raise a question of fact for the jury. O’Neil v.

Kiledjian, 511 F2d 511, 513 (6th Cir. 1975). This

determination is one of law to be made by the

trial court in the first instance. Jd. In deter-

mining whether the evidence is sufficient, the

trial court may neither weigh the evidence, pass

on the credibility of witnesses nor substitute its

judgment for that of the jury. Rather, the evi-

Jence must be viewed in the light most favor-

able to the party against whom the motion is

made, drawing from that evidence all reasonable

inferences in his favor. See Gillham v. Admiral

Corp., 523 F.2d 102, 109 (6th Cir. 1975), cert.

denied, 424 US. 913, 96 S.Ct. 1113, 47 L.Ed.2d

318 (1976). If, after thus viewing the evidence,

the trial court is of the opinion that it points so

A-36

strongly in favor of the movant that reasonable

minds could not come to a different conclusion,

then the motion should be granted. Id. at 109;

Reeves v. Power Tools, Inc., 474 E2d 375, 380

(6th Cir. 1973); 9 Wright & Miller, Federal Prac-

tice and Procedure § 2524 (1971). An appellate

court when reviewing the trial court’s decision

is bound by the same standard. Gillham v.

Admiral Corp., supra, 523 E2d at 109; O’Neil v.

Kiledjian, supra, 511 E2d at 513.

Morelock v. NCR Corp., 586 E2d 1096, 1104-05 (6th Cir.

1978), cert. denied 441 U.S. 906 (197°). See also Phillips

v. Hardware Wholesales Inc., 762 F.2d 46 (6th Cir.

1985); Bellamy v. Bradley, 729 F.2d 416 (6th Cir. 1984),

cert. denied 83 L.Ed.2d 93 (1984): and Pike v. Bench-

master Mfg. Co., 696 FE2d 38 (6th Cir. 1982).

42 US.C. § 1983

In order for a plaintiff who alleges that he has been

dismissed from his employment with a municipality

because he has exercised constitutionally protected

freedoms to prevail in a Section 1983 suit, the three-

part test of Mt. Healthy City Board of Ed. v. Doyle, 429

U.S. 274 (1977) must be satisfied. Mt. Healthy first

requires a plaintiff to establish that the conduct

engaged in was constitutionally protected. Second, the

plaintiff must establish that the exercise of that consti-

tutionally protected freedom was a motivating factor in

the decision to terminate his employment. If the plain-

tiff is able to carry his burden of proof on these two

issues, the burden then shifts to the defendant to show

that it would have reached the same decision as to

plaintiff’s employment even in the absence of the pro-

tected conduct. Id. at 287.

ee ee ee

A-37

Assuming that a plaintiff is able to demonstrate the

Mt. Healthy elements, he must overcome one final

hurdle if he wishes to recover against the municipal en-

tity itself. In such cases, the plaintiff must establish

that the actions which were taken to terminate his em-

ployment was taken pursuant to a custom or policy of

the municipality. Monell v. New York City Dept. of

Social Services, 436 U.S. 658 (1978).

THE INSTANT CASE

In the present case, the Court believes that a sufti-

cient factual basis exists to support a finding by the

jury that the plaintiff met his burden of proof under Mt.

Healthy as against certain individuals who were not

named as defendants. Clearly, plaintiff's letter writing

activity constituted a constitutionally protected activ-

ity. Moreover, despite defendants’ arguments to the

contrary, sufficient evidence exists in the record to

support a finding that some individual Macomb County

employees were offended by Mr. Pilarowski’s letter

writing activities and accordingly undertook to have

his employment with the Health Department termi-

nated. Similarly, sufficient evidence exists to support

the conclusion that defendants’ argument that plaintiff

was placed on indefinite layoff due to a budget deficit

was pretextual and that plaintiff would not have been

fired but for his letter writing activities. All of this

evidence, however, is insufficient to overcome the fact

that the plaintiff chose to sue only Macomb County

and no individual members of the Board of Commis-

sioners or Health Department.

Where a plaintiff chooses to sue a municipality for

the alleged deprivation of a constitutional right, it is

incumbent upon the plaintiff to identify the existence

A-38

of a governmental policy and connect that policy to the

particular injuries which he has suffered. Bennett v.

City of Slidell, 728 E2d 762, 767 (5th Cir. 1984), reh’g

denied 735 F2d 861 (1984), cert. denied 87 L.Ed.2d 612

(1985). Succinctly, the injury suffered by the plaintiff

must be fairly and directly attributable to the govern-

ment itself. A local governmental body cannot be held

responsible for the actions of its individual employees

under 42 U.S.C. § 1983 on a respondeat superior theory

of liability. Monell, 436 U.S. at 694.

The Supreme Court in Monell expressly stated

that the city policy, for which the city may

suffer liability, may be made by city lawmakers

“or by those whose edicts or acts may fairly be

said to represent official policy.” We do not read

the Court’s words here to declare that any city

official’s edicts or acts would render the city

liable in any case where a fact finder chose to

say, speaking fairly, that the edicts or acts were

official policy. The Court intended there to be a

legal perimeter for city liability, which was not

to include responsibility for edicts or acts of its

employees, whatever their rank, unless in accord

with city policy. Liability must rest on official

policy, meaning the city government’s pclicy and

not the policy of an individual official. The

policy is that of the city, however, where it is

made by an official under authority to do so

given the governing authority. Hence, culpable

policy is attributable to the governing body of

the city where the policy was made by an offi-

cial to whom the governing body had given

policymaking authority.

But policymaking authority is more than dis-

cretion, and it is far more than the final say-so,

eid Sega Bike ieee DAA apa ic ts ale See eter aah ia neath Which sh ile sak apa.” Stated atk eh Raha EEL:

A-39

as a matter of practice, on what water main will

be replaced today and whether a building meets

city construction standards. City policymakers

not only govern conduct; they decide the goals

for a particular city function and devise the

means of achieving those goals. Policymakers

act in the place of the governing body in

the area of their responsibility; they are not

supervised except as to the totality of their

performance.

Bennett, 728 |F2d| at 768-69.

In the present case, plaintiff’s claim against Macomb

County fails because the plaintiff failed to establish

that the Board of Commissioners had a policy of sup-

pressing free speech or that the Board delegated signifi-

cant policymaking authority to any single individual

who had such a policy. That plaintiff might well have

succeeded in an action against various individuals does

not establish liability as against the City of Macomb.

In answer to defendants’ motion for a judgment not-

withstanding the verdict, the plaintiff points to five

facts which he argues prove that Macomb County itself

had a policy of suppressing free speech. First, plaintiff

points to his firing in 1976. Second, plaintiff argues

that Macomb County sought to silence him by im-

posing a news blackout on various collective bargaining

negotiations during the early 1980’s. Third, plaintiff

argues that his job responsibilities were substantially

diminished following his reinstatement in 1976. Fourth,

plaintiff points to the testimony of Commissioner

Dilber who overheard Commissioners Back and Grove

discussing ways of indirectly getting rid of the plaintiff.

Finally, the plaintiff offered the testimony of two wit-

nesses who testified that they were afraid of expressing

certain opinions for fear of retaliation.

A-40

Having carefully examined this evidence, the Court

finds that, as a matter of law, it is insufficient to estab-

lish liability as against the County of Macomb. The

plaintiff simply failed to demonstrate any connection

between these events and the Court is unwilling to

assume such a relationship. In short, the Court believes

that the plaintiff is improperly attempting to predicate

governmental liability on the unrelated actions of a

limited number of individual employees. This is classic

respondeat superior liability and is permissible in an

action against a municipality under 42 U.S.C. § 1983.

Accordingly, defendants’ motion for a judgment not-

withstanding the verdict is GRANTED. Judgment will

therefore be entered in favor of the defendants. Plain-

tiff’s motion for costs and attorney fees is DENIED AS

MOOT.

IT IS SO ORDERED.

/s/ JAMES HARVEY

United States District Judge

JUDGMENT IN A CIVIL CASE

NOTWITHSTANDING THE VERDICT

CIV 31 APR. 16, 1986

(Rev. 5/83)

United States District Court

DISTRICT: Eastern District of Michigan

CASE TITLE: JOHN PILAROWSKI v. MACOMB COUNTY

HEALTH DEPARTMENT and MACOMB COUNTY BOARD

OF COMMISSIONERS; DOCKETNUMBER: 83-CV-9064-

PH; NAME OF JUDGE OR MAGISTRATE: JAMES HARVEY

(x} Decision by Court. This ection came to trial or

hearing before the Court with the judge (magis-

trate) named above presiding. The issues have been

tried or heard and a decision has been rendered

A-41

IT IS ORDERED AND ADJUDGED

that defendants’ motion for a judgment notwith-

standing the verdict is hereby GRANTED. Judgment is

hereby entered in favor of the defendants and plaintiff

takes nothing.

CLERK: ROBERT A. MOSSING

(BY) DEPUTY CLERK: Barbara Heys

DATE: 4/14/86

A-42

JUDGMENT ON JURY VERDICT

(United States District Court —

Eastern District of Michigan)

(Filed September 24, 1985)

(JOHN PILAROWSKI, Plaintiff, vs MACOMB COUNTY

HEALTH DEPARTMENT and MACOMB COUNTY BOARD

OF COMMISSIONERS, Defendants — CIVIL ACTION FILE

NO. 83-CV-9064-PH)

Civ 31

Rev 12/81

This action came on for trial before the Court and a

jury, Honorable James Harvey, United States District

Judge, presiding.

The issues having been duly tried and the jury

having duly rendered its verdict, it is ordered and

adjudged that plaintiff recover of defendants the sum of

Three Hundred Thousand, One Dollars ($301,000.00).

Dated at Port Huron, Michigan, this 24th day of

September, 1985.

ROBERT A. MOSSING

Clerk of Court

By: /s/ Barbara Heys

Deputy Clerk

eee a Be ee

A-43

MEMORANDUM OPINION AND ORDER

(United States District Court —

Eastern District of Michigan —

Southern Division)

(Filed September 9, 1985)

(JOHN PILAROWSKI, Plaintiff, -vs- MACOMB COUNTY

HEALTH DEPARTMENT AND MACOMB COUNTY BOARD

OF COMMISSIONERS, Defendant|s] — CIVIL ACTION

NO. 83-9064 PH)

At a session of said Court held in the Federal Building,

Port Huron, Michigan on the 9th day of September,

1985.

PRESENT: HONORABLE JAMES HARVEY,

United States District Judge.

In the present action, the plaintiff alleges that the

defendants violated his First Amendment right to free

speech by terminating his employment with the

Macomb County Health Department. Specifically, the

plaintiff alleges that he was fired in response to a series

ot letters which he wrote to the editor of a local news-

paper criticizing various local governmental officials.

The Court now has before it the following motions:

1! Detendants’ Motion to Dismiss;

2} Defendants’ Motion for Summary Judgment; and,

3! Defendants’ Motion for a non-jury trial.

Detegdants’ tirst motion is a motion to dismiss for

tailur€ to state a claim for which relief can be granted

and for failure to comply with this Court’s Order of

March 29 1985. These motions have been brought pur-

suant to Federal Rules of Civil Procedure 12(b)(6) and

37(b\(2)(\C). Notably, the plaintiff has failed to answer

A-44

defendants’ motion to dismiss. The essence of defendants’

motion is not so much an argument that plaintiff’s

complaint fails to allege a viable legal theory and

attendant set of facts as it is that the plaintiff has failed

to state, with the requisite specificity, the factual basis

for his claim under 42 U.S.C. § 1983. To the extent that

defendants’ motion can be characterized as a proto-

typical Rule 12(b)(6) motion, the Court believes that it

is more appropriate to treat it as a motion for summary

judgment under Rule 56. See, Windsor v. The Tennes-

sean, 719 F.2d 155 (6th Cir. 1983). Accordingly, the

Court will incorporate those more traditional aspects of

defendants’ motion to dismiss into its discussion of

defendants’ motion for summary judgment.

The basis of defendants’ motion to dismiss is an

argument that plaintiff has failed to adequately answer

various interrogatories submitted to him. As properly

noted by defendants, this is the second time that this

issue has come before the Court. In an Order dated

March 29, 1985 the Court granted defendants’ motion

to compel and ordered the plaintiff to answer certain

interrogatories. Having reviewed the record, the Court

finds that while the plaintiff has submitted answers to

those interrogatories, those answers are inadequate.

Nevertheless, the Court does not believe that justice

dictates that this action be dismissed under Rule

12(b)(6) or Rule 37(b)(2)(C). Rather, the Court hereby

ORDERS the plaintiff to submit more detailed answers

to interrogatories Nos. 1, 6, 11, 12, 13, and 14 before the

start of trial.

Defendants’ second motion is a motion for summary

judgment brought pursuant to Federal Rule of Civil

Procedure 56. Defendants argue that two separate bases

exist which are sufficient to support a grant of sum-

mary judgment. Defendants first argue that no genuine

A-45

issue of material fact exists as to the issue of whether

plaintiff’s alleged injuries were occasioned by any,

unconstitutional custom or policy of the defendants.

Defendants’ second argument is that the plaintiff is

collaterally estopped from introducing into evidence

any testimony that his discharge was attributable to

any factor other than budgetary considerations. The

Court will begin its analysis of defendants’ summary

judgment motion by addressing the second of these

bases.

Following his discharge, plaintiff filed a claim of

unfair labor practices with the Michigan Employment

Relations Commission (“MERC”). Plaintiff raised the

same basic arguments before the MERC as he now

raises before this Court in arguing that he had been

discharged for his letter-writing activities. The

Administrative Law Judge and the MERC found that

the plaintiff had not been discharged for his letter

writing activities and that “the record establishes that

there was a need for economy on the part of the

County in the operation of its Health Department.”

Defendants now argue that that factual finding is col-

lateral estoppel as to the issue of whether the plaintiff

was fired for his letter-writing activities or for

budgetary reasons.

In Allen v. McCurry, 449 U.S. 90 (1980) and Migra v.

Warren City School Dist. Bd. of Ed., _. U.S. —_, 104

S.Ct. 892, 79 L.Ed.2d. 59, n. 1 (1982), the Supreme Court

held that the Full Faith and Credit Clause of the Fed-

eral Constitution, as implemented by 28 U.S.C. § 1738,

requires federal courts to give state court judgments

the same preclusive effect in a later Section 1983 action

as it would be given under the law of the state in

which the judgment was rendered. Defendants cite

Senior Accountants v. Detroit, 399 Mich. 449 (1976) in

A-46

support of the proposition that Michigan would give

the MERC decision such preclusive effect so as to

estoppe the plaintiff from challenging the reason for his

dismissal.

In Senior Accountants, the Michigan Supreme Court

held that an MERC determination that the plaintiff

claimants were not entitled to an award of back pay

was binding in a later suit for damages in Michigan

Circuit Court. Jd. at 458-59. On the authority of Senior

Accountants, defendants argue that this Court must

hold that plaintiff is collaterally estopped from chal-

lenging the MERC’s finding that he was fired for

budgetary considerations and not because of his letter-

writing activities.

Having reviewed this matter, the Court has con-

cluded that the MERC determination is an administra-

tive adjudication and not a state judicial proceeding

within the meaning of 28 U.S.C. § 1738. The Court

recognizes that this is a close question but nevertheless

believes that this result is compelled by the decisions

in McDonald v. West Branch, — U.S. —, 104 S.Ct. 1799,

80 L.Ed.2d. 302 (1984) and Elliott v. The University of

Tennessee, Docket No. 84-5692 (6th Cir. 1985). Even

assuming that the MERC determination is a judicial

proceeding within the meaning of 28 U.S.C. § 1738, the

Court believes that affording unappealed MERC deter-

minations preclusive effect in subsequent Section 1983

actions would seriously circumscribe the protections

afforded by that civil rights statute. See Elliott, supra.

“The legislative history and purpose of Section 1983, as

explicated by the Supreme Court, is incompatible with

application of a judicially fashioned rule of preclusion

that would bind a court considering a Section 1983

claim to the unreviewed findings of a state administra-

tive agency.” Moreover, the Court believes that this

A-47

result is precisely what was intended by the Sixth Cir-

cuit in Elliott. The Court in Elliott held

It the claimant prevails before the administrative

agency, the defendant may appeal to the state

courts and thus, pursuant to the rule in Allen,

Migra and Kremer, preclude federal court inter-

vention. If the claimant loses before the agency,

the claimant may either pursue an appeal in the

state courts or bring an action in federal court.

The rule of non-preclusion maximizes the forum

choices by encouraging the claimant to pursue

administrative remedies when, if rules of preclu-

sion were applicable, the claimant would forego

the administrative adjudication and proceed

immediately to federal court. /d.

Accordingly, the Court holds that the MERC determina-

tion that the termination of the plaintiff's employment

was brought about by budgetary concerns has no col-

lateral estoppel effect in the case now before the Court.

The second basis which defendants offer in support of

their motion for summary judgment is a claim that no

genuine issue of material fact exists as to the issue of

whether any unconstitutional custom or policy of the

defendants caused plaintiff's alleged injuries.

Summary judgment is appropriate where no genuine

issue of material fact remains to be decided and the

moving party is entitled to judgment as a matter of law.

Willets v. Ford Motor Co., 583 F.2d 852, 855 (6th Cir.

1978); ER. Civ. P. 56(c). In applying this standard, the

Court must review all materials offered in support of a

motion for summary judgment, as well as all pleadings,

depositions, answers to interrogatories, and admissions

properly on file in the light most favorable to the party

opposing the motion. Arnett v. Kennedy, 416 US. 134

A-48

(1974); United States v. Diebold, 368 U.S. 654 (1962);

Smith v. Hudson, 600 E2d 60 (6th Cir. 1979).

The instant case is somewhat unusual in that the

plaintiff has chosen not to sue the individual Board

members who allegedly terminated his employment.

Accepting that the plaintiff has chosen to sue only the

municipal defendants, the plaintiff must prove that the

injuries that he allegedly suffered were brought about

by some unconstitutional custom or policy of these

defendants. Monell v. New York Dept. of Soc. Ser., 436

U.S. 658 (1978). A municipal defendant may not be held

liable on the basis of respondeat superior. Id. If the

plaintiff is unable to prove any such custom or policy,

his case must necessarily be dismissed.

Having reviewed the record in the present case, the

Court is deeply concerned as to whether the plaintiff

will be able to sustain his burden. Nevertheless, the

Court must refrain from granting a motion for sum-

mary judgment if it finds that there was any substantial

question of fact to be decided. In the present case, the

Court believes that the plaintiff has alleged the exis-

tence of sufficient factual questions such that it would

be improper to grant defendants’ motion for summary

judgment. Specifically, the Court believes that the

plaintiff may be able to establish the existence of an un-

constitutional custom or policy by demonstrating that

the action taken against him was instituted by such high

ranking governmental officials that it may be fairly char-

acterized as the policy of the defendant County. Accord-

ingly, the Court hereby DENIES defendants’ motion for

summary judgment. The defendants will be free, how-

ever, to make a motion for a directed verdict at the

close of plaintiff’s proofs if the evidence so warrants.

The final motion now before the Court is defendants’

motion for a non-jury trial. The defendants argue that

rey ere

A-49

because plaintiff's complaint does not contain a written

demand for a jury trial they have not been served with

proper notice of plaintiff’s demand for jury trial and

that the jury should be stricken. Defendants cite Fed-

eral Rules of Civil Procedure 38(d) in support of their

motion. Having reviewed this matter the Court will

DENY defendants’ motion for a non-jury trial. The

Court believes that the defendants have had adequate

notice of the fact that the plaintiff wishes to try this

matter to a jury and would point to the fact that plain-

tiff’s complaint is captioned “Verified Complaint and

Demand for Jury trial” and that the notices which this

Court has sent out scheduling the various dates in this

case have indicated that this was a jury trial. Accord-

ingly, the Court DENIES defendants’ motion to dismiss

but ORDERS the plaintiff to submit more detailed

answers to the interrogatories previously specified.

Defendants’ motion for summary judgment is DENIED

and defendants’ motion for non-jury trial is DENIED.

IT IS SO ORDERED.

/s/ JAMES HARVEY

United States District Judge

A-50

JUDGMENT

(United States Court of Appeals — Sixth Circuit)

(Filed March 15, 1988; Issued as Mandate April 14, 1988)

(JOHN PILAROWSKI, Plaintiff-Appellant, v. MACOMB

COUNTY HEALTH DEPARTMENT, MACOMB COUNTY

BOARD OF COMMISSIONERS, Defendants-Appellees —

No. 86-1423)

Before: LIVELY, Chief Judge;

WELLFORD;; Circuit Judge,

and CELEBREZZE, Senior Circuit Judge.

ON APPEAL from the United States District Court for

the Eastern District of Michigan.

THIS CAUSE came on to be heard on the record from

the said district court and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this court that the judgment of

the said district court in this case be and the same is

hereby affirmed.

IT IS FURTHER ORDERED that Defendants-Appellees

recover from Plaintiff-Appellant the costs on appeal, as

itemized below, and that execution therefor issue out of

said district court, if necessary.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman,

Clerk

Issued as Mandate: April 14, 1988

(Certification Omitted)

JA Sa Aine LS nab i A hee SC Neal IE SRA hc eS i EAA bl

A-51

ORDER

(United States Court of Appeals — Sixth Circuit)

(Filed April 12, 1988}

(JOHN PILAROWSKI, Plaintiff-Appellant, v. MACOMB

COUNTY HEALTH DEPARTMENT, ET AL., Defendants-

Appellees — No. 86-1423)

Before: LIVELY and WELLFORD, Circuit Judges,

and CELEBREZZE, Senior Circuit Judge.

The Court having received a petition for rehearing en

banc, and the petition having been circulated not only

to the original panel members but also to all other

active judges of this Court, and no judge of this Court

having requested a vote on the suggestion for rehearing

en banc, the petition for rehearing has been referred to

the original hearing panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original sub-

mission and decision of the case. Accordingly, the peti-

tion is denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman,

Clerk

A-52

PORTION OF JURY INSTRUCTIONS

(United States District Court —

Eastern District of Michigan —

Southern Division)

(Proceedings of September 24, 1985)

+ + *

(78) *‘* * In order to prevail on his claim under

Title 42, United States Code, Section 1983, the burden

is on the Plaintiff to establish each of the following

elements by preponderance of the evidence.

First, that he was employed by the Defendant,

Macomb County Health Department, and that he was

laid off or fired from that employment.

Second, that the Defendants acted under color of law.

Third, that the Plaintiff would not have been placed

on layoff or fired but for the fact that he chose to exer-

cise his right of free speech by writing letters to various

local newspapers.

Four, that the Plaintiff was deprived of his rights to

free speech pursuant to a policy or custom of Macomb

County of suppressing free speech.

Fifth, that the Defendants’ acts or conduct proxi-

mately caused damage to the Plaintiff.

The first element which the Plaintiff must establish

in order to prove his claim is that he was (79) employed

by the Macomb County Health Department and he was

laid off or fired from that employment.

The second element which Plaintiff must establish to

prove his claim is that the Defendants acted under

color |of| law.

Acts are done under color of law when government

officials act or purport to act in the performance of

their official duties.

Rated ee ee eee

ahh bile hase te Si JNetivhs beat ind ee

pois ear ars

oes

A-53

The Plaintiffs and Defendants have agreed for pur-

poses of this case that all of the actions by the

Defendants were under color of law.

The third element which the Plaintiff must establish

in order to prove his claim is that he would not have

been laid off or fired but for the fact that he chose to

exercise his right to free speech. ’

In order to sustain his burden on this element, the

Plaintiff must show that he engaged in a Constitutional

activity, and that the conduct was a motivating factor

in the Defendant's decision to lay off or fire him.

If you find that the Plaintiff has carried that burden,

the burden then shifts to the Defendants to prove by a

preponderance of the evidence that it would have laid

off or fired the Plaintiff even if he had not engaged in

that Constitutionally protected activity.

(80) The mere fact that the Plaintiff was laid off or

fired does not establish the Plaintiff’s claim, even

though you may feel that the discharge was un-

warranted or unreasonable.

If you find, however, that the Defendants discharged

the Plaintiff in order to suppress the Plaintiff’s exercise

ot free speech or in reprisal for having exercised his free

speech, then such layoff or firing would not be lawful.

A policy is made by lawmakers or by those whose

edicts or acts may be fairly said to represent official

policy.

I’ll say again: policy is made by lawmakers or by

those who[se] acts may be fairly said to represent offi-

cial policy. .

This does not mear. that any official’s edicts or acts

would render the governmeut liable. Liability must rest

on official policy, meaning the government's policy, and

not the policy of an individual official.

Custom is a persistent or widespread practice or a

systematic maladministration of the laws. Practices are

A-54

well settled and permanent, deeply embedded tradi-

tional ways of carrying out a formal or informal policy.

The fourth element which the Plaintiff must (81)

establish in order to prove his claim is that Macomb

County had a policy of suppressing free speech, and

that the actions which were taken to lay off or fire him

were taken as a result of that policy.

In order to establish this element, it is not enough

that the Plaintiff prove that certain individual members

of the Macomb County Board of Commissioners or

Macomb County Health Department took action to

have him laid off or fired in order to suppress his free

speech.

Rather, the Plaintiff must prove that Macomb Countv

had a policy of suppressing free speech, and that the

actions which were taken to lay off or fire him were

taken as a direct result of that policy.

The fifth element, the Plaintiff must establish that

the Defendants’ acts were a proximate cause of injury

and subsequent damage to Plaintiff.

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.