Ron Klosowski v. City of Bay City , 696 F. App'x 707 ( 2017 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0358n.06
No. 16-1996
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Jun 21, 2017
DEBORAH S. HUNT, Clerk
RON KLOSOWSKI, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
CITY OF BAY CITY and JOE LEDESMA, )
)
OPINION
Defendants-Appellees. )
)
Before: DAUGHTREY, MOORE, and GIBBONS, Circuit Judges.
KAREN NELSON MOORE, Circuit Judge. This case arises out of a conflict between
Plaintiff-Appellant Ron Klosowski, a contract bridge tender in Defendant-Appellee City of Bay
City, and his supervisor, Defendant-Appellee Joe Ledesma. The conflict began when Klosowski
told the mayor of Bay City that the government could save a considerable sum if it closed two
bascule bridges in December, when the Saginaw River freezes over. Although the mayor and
other public officials liked Klosowski’s idea, it caused acrimony among the other bridge tenders,
who wanted to work through December. So, Ledesma asked that Klosowski not return the
following season. Unhappy with this decision, Klosowski sued Ledesma and Bay City, claiming
that they tortiously interfered with a business expectancy and a contractual relationship.
Klosowski also claimed that Ledesma and Bay City violated the First Amendment to the U.S.
Constitution and its equivalent under the Michigan Constitution for retaliating against his free
expression and were thus liable for damages under 42 U.S.C. § 1983. The district court found
No. 16-1996, Klosowski v. City of Bay City et al.
that Klosowski had not put forth sufficient evidence to support his claims and awarded summary
judgment against him on all counts. We hold that the district court correctly awarded summary
judgment on Klosowski’s tortious-interference claims, but not on his § 1983 claim. Therefore,
we AFFIRM the judgment as to Counts I through III, REVERSE the judgment as to Count IV,
and REMAND for further proceedings consistent with this opinion.
I. BACKGROUND
The following facts are cast in the light most favorable to Klosowski, the nonmoving
party. See Dye v. Office of the Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012).
A. Bay City and Bridge Tenders
Situated in the thenar eminence of the lower Michigan “mitten,” Bay City is home to two
bascule bridges for the many ships that travel through the Great Lakes. R. 14-4 (Ledesma Dep.
at 8) (Page ID #723). Tending these bridges is seasonal work, R. 10-7 (Klosowski Dep. at 44,
233) (Page ID #454, 501), and from 2007 to December 2012, Klosowski tended one of these
bridges for various staffing agencies, including a company called ITH Staffing (“ITH”). Id. at
29–30 (Page ID #450–51); R. 14-1 (Klosowski Aff. ¶¶ 6, 47) (Page ID #669–70, 673). Although
ITH was Klosowski’s technical employer, Joe Ledesma, a bridge foreman employed by Bay
City, R. 10-2 (Ledesma Aff. ¶ 2) (Page ID #403); R. 30-3 (Bridge Foreman Job Description at 1)
(Page ID #1129), “did all of [Klosowski’s] scheduling, gave [him] all of [his] assignments, set
[his] hours, and did [his] evaluations.” R. 14-1 (Klosowski Aff. ¶ 11) (Page ID #670); see also
R. 10-2 (Ledesma Aff. ¶ 3) (Page ID #403). Nevertheless, in his employment contract with ITH,
Klosowski checked off a section of ITH’s policy and procedures checklist that stated,
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No. 16-1996, Klosowski v. City of Bay City et al.
“I understand that I am an employee of this staffing company and only I or this staffing company
can terminate my employment. When an assignment ends, I must report to staffing company
office for my next job assignment.” R. 10-6 (Policy and Procedures Checklist ¶ 5) (Page ID
#440).
Over the course of his time as a bridge tender, Klosowski’s job performance was mixed.
Klosowski was a “pro-active employee,” R. 14-1 (Klosowski Aff. ¶ 37) (Page ID #673), but had
conflicts with Ledesma and at least one other bridge tender. See R. 10-2 (Ledesma Aff. ¶¶ 6–14)
(Page ID #404–05); R. 10-7 (Klosowski Dep. at 80) (Page ID #463). Nevertheless, by the end of
his tenure, Klosowski received top marks in his assignment merit evaluations, including the
“personality” category. See R. 14-9 (Sept. 7, 2011 Assignment Merit Evaluation) (Page ID
#776); R. 14-10 (PERC Merit Report) (Page ID #777) (stating that Klosowski “[h]ad some issues
6-14-11, but once we aired them out Ron is clearly one of our best employees”); R. 14-11 (Dec.
16, 2011 Assignment Merit Evaluation) (Page ID #778); R. 14-7 (Aug. 9, 2012 Assignment
Merit Evaluation) (Page ID #774); R. 14-8 (Sept. 27, 2012 Assignment Merit Evaluation) (Page
ID #775).
B. Klosowski’s Opinion about December Bridge Closings
At some point, Klosowski came to believe that Bay City was wasting tax dollars to keep
the bridges open during the month of December, when the river froze over. In October or
November 2012, Klosowski expressed this opinion to Ledesma. R. 14-1 (Klosowski Aff. ¶¶ 20–
22) (Page ID #671). Ledesma disagreed with Klosowski, but nevertheless Klosowski persisted.
Having “heard about possible firemen and police layoffs,” Klosowski “called Mayor Christopher
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No. 16-1996, Klosowski v. City of Bay City et al.
Shannon, as a concerned taxpayer, in an attempt to save the City of Bay City substantial monies
and maintain fire and police protection.” Id. ¶¶ 23–24 (Page ID #671). Mayor Shannon told
Klosowski over the phone that closing the bridges in December was a good idea and asked that
Klosowski follow up by e-mail. Id. ¶ 25 (Page ID #672); R. 14-12 (Klosowski E-mail to
Shannon) (Page ID #779).
Unfortunately, when Klosowski followed up with the mayor, “Ledesma’s attitude
towards [him] changed for the worse.” R. 14-1 (Klosowski Aff. ¶ 29) (Page ID #672).
On November 14, 2012, the day after Klosowski e-mailed the mayor, Ledesma told Klosowski
that Klosowski should respect the chain of command, rather than air complaints directly to the
mayor.1 R. 14-32 (Klosowski Letter to Shannon at 1–2) (Page ID #853–54). On November 21,
2012, Ledesma informed the ITH office manager that he did not want Klosowski to return the
following year. R. 10-14 (Nov. 21, 2012 History Detail Report) (Page ID #579); R. 10-15
(Sowels Dep. at 5) (Page ID #585); Appellant’s Br. at 15. Ledesma “made the decision not to
return Klosowski based on the history of conflict between he and his fellow Bridge Tenders, his
more recent attempts to undermine [Ledesma’s] authority, and the unanimous response of his
fellow employees who did not want him to return.” R. 10-2 (Ledesma Aff. ¶ 26) (Page ID
#408); R. 14-4 (Ledesma Dep. at 41) (Page ID #732); R. 10-13 (Harran Dep. at 32) (Page ID
#572). On April 5, 2013, as the next season began, ITH informed Klosowski that he would not
be called back to Bay City because of “cutbacks in hours and changes in the scheduling.” R. 10-
1
The public-works director, who was also present, did not recall this conversation. R. 10-
13 (Harran Dep. at 27–28) (Page ID #571).
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No. 16-1996, Klosowski v. City of Bay City et al.
16 (Apr. 5, 2013 Letter) (Page ID #597). ITH also stated that Klosowski “qualif[ied] for other
assignments through ITH Staffing as they become available.” Id.; R. 10-15 (Sowels Dep. at 42)
(Page ID #595). However, believing that ITH was untrustworthy and was lying to him,
Klosowski never returned to ITH to seek employment. R. 10-7 (Klosowski Dep. at 126) (Page
ID #475).
C. Procedural History
Klosowski brought this case in state court on August 1, 2013, alleging that Bay City and
Ledesma tortiously interfered with a business relationship, tortiously interfered with a
contractual relationship, violated Michigan public policy, and violated the Michigan
Constitution. R. 1 (Notice of Removal ¶ 1) (Page ID #1–2). After Klosowski amended his
complaint to allege that Bay City and Ledesma violated his First Amendment rights as well, the
defendants removed the case to the United States District Court for the Eastern District of
Michigan. Id. ¶¶ 2–6 (Page ID #2). In a series of decisions, the district court awarded summary
judgment against Klosowski on all counts. Klosowski v. Ledesma, No. 15-10636, 2016 WL
627731 (E.D. Mich. Feb. 17, 2016); Klosowski v. Bay City, No. 15-10636, 2016 WL 1106891
(E.D. Mich. Mar. 22, 2016); Klosowski v. Ledesma, No. 15-10636, 2016 WL 3213386 (E.D.
Mich. June 10, 2016). Klosowski timely appealed the district court’s judgment on July 7, 2016.
R. 39 (Notice of Appeal) (Page ID #1412).
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No. 16-1996, Klosowski v. City of Bay City et al.
II. DISCUSSION
A. Standard of Review
We apply de novo review on an appeal of a district court’s award of summary judgment.
Dye, 702 F.3d at 294. And, as stated above, we view the facts and inferences drawn therefrom in
the light most favorable to Klosowski, the nonmoving party. See id. With the facts cast in this
light, summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
B. Tortious-Interference Claims
The first issue on appeal is whether the district court correctly awarded summary
judgment on Klosowski’s tortious-interference claims. There are four such claims: (1) tortious
interference with a business expectancy against Ledesma, (2) tortious interference with a
business expectancy against Bay City, (3) tortious interference with a contractual relationship
against Ledesma, and (4) tortious interference with a contractual relationship against Bay City.
See R. 1-2 (Am. Compl. ¶¶ 47–60 (Page ID #27–29). We address these claims below with
respect to Bay City and Ledesma.
1. Tortious-Interference Claims against Bay City
Klosowski complains about several alleged errors by the district court with respect to his
tortious-interference claims against Bay City. He argues that he had a business expectancy with
Bay City, not ITH; that the district court improperly accepted Ledesma’s affirmative defenses;
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No. 16-1996, Klosowski v. City of Bay City et al.
that Bay City did not mitigate damages; and that it was reasonable for Klosowski to reject ITH’s
offer to work elsewhere.
Klosowski’s arguments are of no significance, however, because Bay City is immune
from tort liability. The district court held that the Governmental Tort Liability Act, Mich. Comp.
Laws § 691.1407 (West 2016), immunized Bay City, an issue which Bay City raised in its
motion for summary judgment, see R. 10 (Defs.’ Am. Mot. Summ. J. at 7–8) (Page ID #376–77),
and to which Klosowski did not respond, see R. 14 (Pl.’s Br. in Opp’n to Defs.’ Mot. Summ. J.)
(Page ID #632–68). See Klosowski, 2016 WL 627731, at *10. Klosowski has also failed to raise
the issue on appeal. Because Klosowski did not address the district court’s ruling on the
Governmental Tort Liability Act either below or on appeal, the issue is forfeited. Lucaj v. FBI,
852 F.3d 541, 547 n.4 (6th Cir. 2017). Therefore, the district court’s judgment with respect to its
dismissal of Klosowski’s tortious-interference claims against Bay City is AFFIRMED.
2. Tortious-Interference Claims against Ledesma
The district court did not err with respect to Klosowski’s tortious-interference claims
against Ledesma either. Under Michigan law, tortious interference with a business relationship
and tortious interference with a contract are separate causes of action with different elements.
Health Call of Detroit v. Atrium Home & Health Care Servs., Inc., 706 N.W.2d 843, 848 (Mich.
Ct. App. 2005). “The elements of tortious interference with a contract are (1) the existence of a
contract, (2) a breach of the contract, and (3) an unjustified instigation of the breach by the
defendant.” Id. at 848–49. The district court properly dismissed Klosowski’s claim of tortious
interference with a contract because there was no breach of contract. Although at-will contracts
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No. 16-1996, Klosowski v. City of Bay City et al.
such as Klosowski’s are “actionable under a tortious interference theory of liability,” Feaheny v.
Caldwell, 437 N.W.2d 358, 364 (Mich. Ct. App. 1989), Klosowski has not shown that there was
a breach of contract in this instance. On the contrary, in his employment contract with ITH,
Klosowski checked off a section of ITH’s policy and procedures checklist that stated,
“I understand that I am an employee of this staffing company and only I or this staffing company
can terminate my employment. When an assignment ends, I must report to staffing company
office for my next job assignment.” R. 10-6 (Policy and Procedures Checklist ¶ 5) (Page ID
#440). In this case, although Klosowski “qualified for other assignments” after his assignment
with Bay City ended, R. 10-16 (Apr. 5, 2013 Letter) (Page ID #597), he chose not to return for a
new assignment, R. 10-15 (Sowels Dep. at 42) (Page ID #595). As we discuss below,
Klosowski’s reassignment raises First Amendment concerns that survive summary judgment.
However, his reassignment does not conflict with the terms of the contract, a precondition to a
claim of tortious interference with a contractual relationship. Therefore, Klosowski has not
shown that Ledesma tortiously interfered with a contractual relationship. See Health Call of
Detroit, 706 N.W.2d at 848–49.
Klosowski has not established the elements of a claim of tortious interference with a
business expectancy either. “The elements of tortious interference with a business relationship
or expectancy are the existence of a valid business relationship or expectancy, knowledge of the
relationship or expectancy on the part of the defendant, an intentional interference by the
defendant inducing or causing a breach or termination of the relationship or expectancy, and
resultant damage to the plaintiff.” Cedroni Assocs., Inc. v. Tomblinson Harburn Assocs.,
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No. 16-1996, Klosowski v. City of Bay City et al.
Architects & Planners, Inc., 821 N.W.2d 1, 3 (Mich. 2012). Klosowski may have expected to
maintain the aspect of his business relationship with ITH that would allow him to continue to
tend bridges in Bay City. See R. 14-1 (Klosowski Aff. ¶¶ 8–12) (“Mr. Ledesma at Bay City did
all of my scheduling, gave me all of my assignments, set my hours, and did my evaluations. As
far as I was aware the only thing that ITH did was pay us.”). However, Klosowski has not
established Ledesma’s “knowledge of the relationship or expectancy” to tend bridges
indefinitely. See Cedroni Assocs., Inc., 821 N.W.2d at 3. Ledesma expressly stated his
understanding that Klosowski worked on a temporary basis, not a permanent one. See R. 10-2
(Ledesma Aff. ¶ 4) (Page ID #404) (“Klosowski was one of eight persons assigned duties as
Bridge Tender through a temporary service provider.”). In addition, Ledesma had no reason to
believe that Klosowski expected to tend bridges indefinitely: Ledesma worked for Bay City
when it transitioned from employing bridge tenders in-house to outsourcing them from staffing
agencies. See R. 14-4 (Ledesma Dep. at 9) (Page ID #724). Without having shown that
Ledesma knew of Klosowski’s business relationship or expectancy to tend bridges indefinitely,
no reasonable juror could find that Ledesma tortiously interfered with a business expectancy.
Therefore, we AFFIRM the district court’s judgment with respect to both of Klosowski’s
tortious-interference claims.
C. Section 1983 Claims
Under § 1983, “[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United
States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution
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No. 16-1996, Klosowski v. City of Bay City et al.
and laws, shall be liable to the party injured.” Klosowski argues on appeal that Ledesma and
Bay City restricted his freedom of speech in violation of the First Amendment.2 We address
Klosowski’s § 1983 claims with respect to each defendant below.
1. Section 1983 Claim against Ledesma
Individuals who violate the Constitution are nevertheless insulated from § 1983 liability
if their conduct “does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” See White v. Pauly, 580 U.S. ——, 137 S. Ct. 548, 551
(2017) (internal quotation marks omitted). Although the district court held that Ledesma
violated Klosowski’s First Amendment rights, it also held that these rights were not clearly
established. Klosowski, 2016 WL 627731, at *9–10. It therefore awarded summary judgment in
favor of Ledesma. Id. at *10. Klosowski argues that the rights at stake were in fact clearly
established, and Ledesma argues that they were not. For the reasons that follow, we hold that
Ledesma is not entitled to qualified immunity because he violated clearly established law.
a. Constitutional Violation
As a preliminary matter, Ledesma argues that he did not violate Klosowski’s rights
because (1) Klosowski was speaking as an employee, rather than a citizen, on matters of public
concern and (2) Klosowski did not establish that his interests outweighed those of the
government. We hold that there is a genuine issue of material fact on both points.
2
Klosowski has not argued on appeal that his rights were violated under the Michigan
Constitution, as he alleged in Count III of his amended complaint. Therefore, we do not address
whether Defendants violated Klosowski’s rights under the Michigan Constitution.
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No. 16-1996, Klosowski v. City of Bay City et al.
The key distinction between protected and unprotected speech among public employees
is “whether the employee was speaking as a citizen and whether the topic was a matter of public
concern.” Boulton v. Swanson, 795 F.3d 526, 531–32 (6th Cir. 2015). First, we are not
convinced by Defendants’ argument that Klosowski was speaking as an employee pursuant to his
“official responsibilities.” Garcetti v. Ceballos, 547 U.S. 410, 424 (2006). Defendants are
correct that “the First Amendment does not prohibit managerial discipline based on an
employee’s expressions made pursuant to official responsibilities.” Id. “The critical question”
in this regard “is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.” Boulton, 795 F.3d at 533–34
(quoting Lane v. Franks, 573 U.S. ——, 134 S. Ct. 2369, 2379 (2014)).
The answer to that question here is simple: criticizing unnecessary government spending
is not “ordinarily within the scope of [Klosowski’s] duties,” id.—his duties were limited to
tending bridges, R. 10-7 (Klosowski Dep. at 83–84) (Page ID #464) (describing some of his
duties as “mak[ing] sure everything’s locked and secure, everything’s clean, windows are
washed, floor swept”). To be sure, Klosowski’s speech stems from his experience as a bridge
tender. However, this experience makes him “most likely to have informed and definite opinions
as to how funds allotted to the operation of the [bridges] should be spent.” See Pickering v. Bd.
of Educ., 391 U.S. 563, 572 (1968); Lane, 134 S. Ct. at 2377. The First Amendment encourages
the expression of these opinions. Boulton, 795 F.3d at 534.
We also hold that, at the summary-judgment stage, Klosowski has established that he was
speaking on a matter of public concern. So long as a public employee’s speech “relates to any
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No. 16-1996, Klosowski v. City of Bay City et al.
matter of political, social, or other concern to the community at large,” it “is properly considered
speech on a matter of public concern.” Leary v. Daeschner, 349 F.3d 888, 899 (6th Cir. 2003)
(internal quotation marks and alterations omitted) (quoting Connick v. Myers, 461 U.S. 138, 146
(1983)). Specifically, “speech addresses a matter of public concern when it alleges [inter alia]
corruption and misuse of public funds.” Boulton, 795 F.3d at 532 (citing Chappel v.
Montgomery Cty. Fire Prot. Dist. No. 1, 131 F.3d 564, 576–77 (6th Cir. 1997)). Ultimately,
“[w]hether an employee’s speech addresses a matter of public concern must be determined by
the content, form, and context of a given statement, as revealed by the whole record.” Id. at 534
(quoting Connick, 461 U.S. at 147–48).
In view of “the whole record” cast in the light most favorable to Klosowski, id., we hold
that a reasonable jury could find Klosowski’s criticisms of spending on the bascule bridges a
matter of public concern. According to Klosowski, Bay City (which has a population of
107,110, City of Bay City Demographics, Bay City, Mich., http://www.baycitymi.org/210/City-
of-Bay-City-Demographics (last visited Apr. 10, 2017)) lost over $15,360 annually by keeping
the bascule bridges open after the river froze over. R. 14-12 (Klosowski E-mail to Shannon)
(Page ID #779). “This is not a case where the criticism of minor inefficiencies is held up as a
matter of public concern simply because the public fisc is implicated.” Chappel, 131 F.3d at
579. On the contrary, this is a case where public officials, including the mayor, public-works
director, state legislators, and the Coast Guard, actually took an interest in Klosowski’s proposal
to close the bridges. R. 10-13 (Harran Dep. at 15–16) (Page ID #568). Under these
circumstances, and particularly “when the City is trying to save money,” R. 14-12 (Klosowski E-
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No. 16-1996, Klosowski v. City of Bay City et al.
mail to Shannon) (Page ID #779), a reasonable jury could conclude that spending a relatively
large sum of money is of public concern. Chappel, 131 F.3d at 579 (holding that speech was of
public concern when it “addressed a critical revenue-shortfall deriving from a basic failure to
collect debts and properly manage the ambulance district’s budget”).
Finally, summary judgment is not appropriate in deciding whether the government’s
interests outweigh Klosowski’s. Defendants simply have not shown at this juncture in the
litigation that their interest in “operating [their] bascule bridges consistent with federal
regulation, maintaining an effective temporary work force, and fostering a harmonious work
environment,” Appellees’ Br. at 38, was hampered by Klosowski’s speech. Crucially, and as the
district court observed, Klosowski’s proposal never went into effect for reasons having nothing
to do with Klosowski’s termination. Klosowski, 2016 WL 627731, at *9; R. 10-13 (Harran Dep.
at 16) (Page ID #568) (observing that the Coast Guard “just revised the schedule the year before
and they weren’t willing to reopen, revisit that idea”). Any lingering discord that Klosowski’s
idea prompted is “speculative” and is thus “insufficient to overcome [Klosowski’s] interest in
speaking as a private citizen on a matter of public concern.” See Whitney v. City of Milan,
677 F.3d 292, 298 (6th Cir. 2012).
b. Clearly Established Right
The next step in analyzing Klosowski’s § 1983 claim is whether the above constitutional
right was clearly established when Ledesma violated it. In order for a right to be “clearly
established,” it must be defined in a sufficiently specific manner that “all but the plainly
incompetent or those who knowingly violate the law” would understand it. White, 137 S. Ct. at
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551 (internal quotation marks omitted). We hold that Ledesma should have known, based on our
decision in Chappel, that his interference with Klosowski’s employment was unlawful.
The plaintiff in Chappel was a part-time emergency medical technician and became
concerned “that there were serious problems with the finances and management of the fire and
ambulance districts” in his county—serious enough that a new paramedic program (to which he
incidentally wanted to apply) was in jeopardy. See 131 F.3d at 568. So Chappel contacted
several public officials, including the county judge executive, to express his opinion on these
issues. The county ultimately created the paramedic program that Chappel wanted, but, when
Chappel applied to it, he wasn’t hired. The head of the program explained:
[Chappel’s] recent unreasonable and disruptive actions demonstrate that he is not
only unreliable but is a threat to the harmonious team atmosphere we are trying to
establish.
In light of his past and current behavior I do not feel that I can permit Mr.
Chappel to work under my medical license. Therefore I will not authorize Mr.
Chappel to work as a paramedic with the Montgomery County Ambulance
Service.
Id. at 569.
The case before us tracks Chappel closely. Under those circumstances, we held that
“Chappel’s speech regarding the need for [standard operating procedures in the fire and
ambulance districts] and improved training was speech on a matter of public concern.” Id. at
578. So too was “Chappel’s criticism of the ambulance district’s financial problems.” Id. at 579.
It was of no moment that Chappel had an ulterior motive to work at the new paramedic program;
as we noted then, “[t]he defendants’ argument, that Chappel’s subjective motivations are
dispositive when determining whether his speech address a matter of purely personal concern, is
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No. 16-1996, Klosowski v. City of Bay City et al.
in direct conflict with the Supreme Court’s holding in Connick.” Chappel, 131 F.3d at 574.
Rather, in Chappel and since, we have “consistently held that speech on the same topics as the
report at issue—the efficacy and operations of public agencies and allegations of misconduct by
public officials—addresses a matter of public concern.” See Kindle v. City of Jeffersontown, 374
F. App’x 562, 568 (6th Cir. 2010) (citing, inter alia, Chappel, 131 F.3d at 576–77). We hold no
differently now. Klosowski, Chappel, and many plaintiffs before them share a concern with their
local government’s finances and offered solutions to these concerns as private citizens using
their experience in public service. It is clearly established that the First Amendment protects
such speech, and with the facts cast in the light most favorable to Klosowski, Ledesma should
have known that.
Defendants argue in response that Klosowski “does not have a clearly established
constitutional right of continued employment,” presumably because he is a contractor employed
at-will. Appellees’ Br. at 39. However, this argument disregards Board of County
Commissioners v. Umbehr, in which the Supreme Court held that there is no “difference of
constitutional magnitude between independent contractors and employees in [the First
Amendment] context.” 518 U.S. 668, 684 (1996) (internal quotation marks omitted). If
anything, Defendants’ interest in controlling the speech of contractors is “somewhat less strong”
than their interest in controlling the speech of their own employees. See id. When the facts are
viewed in the light most favorable to Klosowski, Ledesma therefore violated Klosowski’s clearly
established rights.
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2. Section 1983 Claim against Bay City
Finally, Klosowski appeals the district court’s judgment with respect to his § 1983 claim
against Bay City. In addition to individuals, municipalities may be sued under § 1983. See
Monell v. Dep’t of Social Services, 436 U.S. 658, 690 (1978). Such suits may be brought either
“where . . . the action that is alleged to be unconstitutional implements or executes a policy
statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s
officers” or if the constitutional deprivation is “visited pursuant to governmental ‘custom’ even
though such a custom has not received formal approval through the body’s official
decisionmaking channels.” Id. at 690–91; Vereecke v. Huron Valley Sch. Dist., 609 F.3d 392,
404 (6th Cir. 2010) (holding that “[a] custom must be so permanent and well settled as to
constitute a custom or usage with the force of law” (internal quotation marks omitted)).
However, as is often remarked, “a municipality cannot be held liable solely because it employs a
tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Monell, 436 U.S. at 691; Pembaur v. City of Cincinnati, 475 U.S. 469, 480 n.8
(1986); Feliciano v. City of Cleveland, 988 F.2d 649, 654–55 (6th Cir. 1993).
The district court dismissed Klosowski’s § 1983 claims against Bay City because
“Plaintiff has not identified any Michigan law or any provision of Bay City’s Charter suggesting
that Ledesma—a bridge foreman—was endowed with final authority to establish any
employment policies on behalf of Defendant Bay City.” Klosowski, 2016 WL 3213386, at *6.
On appeal, Klosowski argues that “[t]he district court read[] the ‘official policy’ as described by
the Court in Pembaur too strictly” and that Ledesma and Harran, acting as final decision makers,
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No. 16-1996, Klosowski v. City of Bay City et al.
effected an unconstitutional city policy. See Appellant’s Br. at 53–59. We hold that Klosowski
is correct.
Klosowski has put forth evidence showing that Ledesma was the final decision maker in
Bay City with respect to contract workers like Klosowski. The authority to make final policy
“can be delegated to [officials] by other officials who have final policymaking authority.” See
Feliciano, 988 F.2d at 655. Ledesma’s job description provides that he “[d]irects, and oversees
work crews [for the Bridge and Street Departments] including scheduling, timekeeping and
support of City policies and procedures.” R. 30-3 (Bridge Foreman Job Description at 1) (Page
ID #1129); R. 14-4 (Ledesma Dep. at 9) (Page ID #724). Ledesma used that scheduling
authority when he decided not to call back Klosowski for the 2013 season. See R. 10-2
(Ledesma Aff. ¶ 26) (Page ID #408). Bay City could have, if it chose, regulated the scheduling
of contractors itself, much as it does for its own employees via the city manager. See R. 30-5
(City Charter § 5.2.c) (Page ID #1139). Instead, it delegated that authority to Ledesma, see R.
10-2 (Ledesma Aff. ¶ 26) (Page ID #408), a decision that would subject it to municipal liability
if a jury determines that Ledesma’s final decision not to call back Klosowski violated the
Constitution. Therefore, we REVERSE the district court’s judgment with respect to the
municipal-liability claim.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment as to Counts I through III,
REVERSE the judgment as to Count IV, and REMAND for further proceedings consistent with
this opinion.
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