Young v. Green Oak Twnshp ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0474p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
LARRY M. YOUNG,
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No. 05-2633
v.
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TOWNSHIP OF GREEN OAK, -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-71891—Denise Page Hood, District Judge.
Argued: October 30, 2006
Decided and Filed: December 28, 2006
Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
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COUNSEL
ARGUED: Peter J. Osetek, OSETEK & ASSOCIATES, Ann Arbor, Michigan, for Appellant.
Gregory A. Roberts, Joseph Nimako, CUMMINGS, MCCLOREY, DAVIS & ACHO, Livonia,
Michigan, for Appellee. ON BRIEF: Peter J. Osetek, OSETEK & ASSOCIATES, Ann Arbor,
Michigan, for Appellant. Gregory A. Roberts, Joseph Nimako, CUMMINGS, MCCLOREY,
DAVIS & ACHO, Livonia, Michigan, for Appellee.
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OPINION
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RONALD LEE GILMAN, Circuit Judge. Larry M. Young appeals from the grant of
summary judgment in favor of his former employer, the Township of Green Oak, Michigan. He
claims that he was wrongfully discharged from his position as a police officer for the Township.
For the reasons set forth below, we AFFIRM the judgment of the district court.
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No. 05-2633 Young v. Green Oak Township Page 2
I. BACKGROUND
A. Factual background
Larry M. Young, a veteran of the United States Navy, began working as a police officer for
the Green Oak Township Police Department in 1978. In August of 1992, Young suffered a back
injury during a training exercise. The injury was diagnosed as a herniated disc, which prevented
Young from working for several days.
When Young returned to work, he performed only light duty assignments until December
of 1992. The Township’s Chief of Police, Robert Brookins, then suggested that Young seek
workers’ compensation benefits. Young heeded Brookins’s advice, stopped working, and submitted
an application for workers’ compensation benefits, which was approved later that month. In April
of 1993, Young’s physician gave Young a letter that released him to return to work with a restriction
to light duty. The Township, however, did not allow him to return to work.
In late September of 1993, Young’s workers’ compensation benefits ceased for reasons not
disclosed in the record. Young alleges that the Police Department notified him the following month,
after he had asked to be paid for work that he had performed testifying in court proceedings, that he
was suspended from active duty. The Police Department required him to turn in his duty-issued
equipment and his badge at that time.
Between October of 1993 and January of 1994, Young received no workers’ compensation
benefits. In January of 1994, however, the benefits resumed, again for reasons not disclosed in the
record. The Township’s insurer challenged the continuation of benefits in 1995, asserting that
Young was no longer disabled as a result of a work-related injury. Young successfully opposed the
challenge and continued to receive benefits until 2001.
Although the Police Department would not permit Young to return to work after 1993, he
was subpoenaed on several occasions to provide court testimony about matters that he had witnessed
before his injury. The last such subpoena in the record is dated in February of 1994. Young was
maintained as an employee on the Township records, however, until January 8, 2003.
According to Young, he learned in 1992 that a fellow police officer had failed to report
discharging his firearm during the pursuit of a suspect. The Township’s police officers are required
to report such incidents. Young informed his supervisors, the Township, and the county prosecutor
of the violation by his fellow officer. As a result, Young contends that the Police Department began
retaliating by harassing him at work. In 1993, a detective sergeant position became available at the
Police Department. Young applied. After learning that he had not received the position, Young
filed a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC).
Young alleged that he had been improperly denied a promotion to the detective sergeant position
at least in part because he had reported a fellow officer’s misconduct.
In May of 2001, Young again sent a letter to Chief Brookins, asking to be returned to work
in a restricted capacity. His letter specified that he had weapon, lifting, weight, and movement
restrictions. He also requested that he be allowed to carry an electric stun gun as part of his
accommodations. Brookins did not reply. In June of 2001, Young filed a second EEOC claim,
alleging disability discrimination under the Americans with Disabilities Act (ADA). The EEOC
issued a right-to-sue letter to Young on February 11, 2002.
Young also learned during the Spring of 2001 that the insurer that had been paying his
workers’ compensation benefits intended to challenge the continuation of benefits. A magistrate
judge with the Michigan Department of Consumer and Industry Services held hearings in August
and September of 2001 on whether to continue Young’s benefits. In a written opinion filed in
No. 05-2633 Young v. Green Oak Township Page 3
October of 2001, the magistrate judge determined that Young “no longer suffers a work related
disability and that any problems he currently suffers are the result of a degenerative condition not
related to the work he was doing at the time of his injury.” Accordingly, Young’s workers’
compensation benefits ceased. The record does not reveal whether Young appealed that
determination.
Young filed the present suit in federal district court on May 13, 2002, but he failed to serve
a copy of the complaint on the Township. In June of 2002, the Township notified Young by mail
that it intended to hold a hearing before the Township Board of Trustees (the Board) pursuant to
Michigan’s Veterans Preference Act (VPA) in order to determine whether his employment should
be terminated. The hearing was scheduled to start 15 days after the date of the letter. As the basis
for Young’s potential termination, the Township stated that he was “unable to perform the essential
functions of a Green Oak Township police officer, with or without accommodation,” and “that the
conditions upon which he had requested to return to work would pose an undue hardship” on the
Police Department.
Prior to the hearing, Young sent Chief Brookins a “renewed request for accommodations”
and sought a job as a “follow-up investigator.” Brookins again did not reply. Instead, the Board
held a hearing over two days in July and August of 2002 to determine whether the Township should
terminate Young’s employment. After receiving testimony from several witnesses and considering
oral and written arguments from the lawyers for both parties, the Board issued a written decision on
January 8, 2003, terminating Young as of that date. Young did not inform the Township or the
Police Department of the pending federal lawsuit at any time during the hearings.
On January 24, 2003, the Michigan Association of Police, the police union, filed a grievance
on Young’s behalf that challenged his termination. Chief Brookins denied the grievance on the
ground that Young had “waived his right” to invoke the grievance process “by electing to utilize the
procedures set forth” in the VPA. As alternate bases for the denial, Brookins noted that the
grievance was filed outside of the seven-day period specified in the parties’ collective bargaining
agreement and was meritless in any event because Young was no longer qualified to be a police
officer.
B. Procedural background
Young and the Township are not strangers to litigation with each other. In July of 1995,
Young filed suit against the Township in the Circuit Court for the County of Livingston, Michigan
(the 1995 Action). The complaint alleged violations of Michigan’s Elliott-Larsen Civil Rights Act
(ELCRA) and the Michigan Handicapper’s Civil Rights Act (MHCRA) for failure to promote,
retaliation under the ELCRA because Young had filed an EEOC claim, retaliation because he had
filed a workers’ compensation claim, and age and disability discrimination that resulted in his
“constructive discharge in October of 1993.”
In July of 1996, the trial court granted partial summary disposition in favor of the Township
on all but Young’s retaliation claims. A final order was entered in September of 1996, reflecting
that the parties had entered into a conditional settlement agreement resolving these remaining issues.
But the settlement agreement allowed Young to appeal his MHCRA claim, which Young in fact
pursued. The Michigan Court of Appeals, however, affirmed the trial court, concluding that Young
had not established a prima facie case of discrimination under the MHCRA. Young v. Green Oak
Twp., No. 198019, 1998 WL 1992898, at *3 (Mich. Ct. App. Mar. 13, 1998).
In June of 1998, Young filed a second complaint in the Livingston County Circuit Court,
naming the Township and Chief Brookins as defendants (the 1998 Action). He alleged multiple
claims, including breach of contract on the basis that he was terminated without just cause for being
No. 05-2633 Young v. Green Oak Township Page 4
disabled, failure to accommodate in violation of the ELCRA and the MHCRA, disability
discrimination in violation of the ELCRA and the MHCRA, intentional infliction of emotional
distress, continual harassment, hostile work environment, and conspiracy to deprive him of his civil
rights. The trial court granted summary disposition for the defendants on all of Young’s claims and,
in a final order filed in November of 1998, dismissed the case with prejudice. Young timely
appealed. The Michigan Court of Appeals dismissed his appeal in an unpublished order in August
of 1999 for want of prosecution.
In July of 1999, while his state court appeal in the 1998 Action was still pending, Young
filed a lawsuit in federal district court against the Township and the Police Department (the 1999
Action). He alleged violations of his constitutional rights under 42 U.S.C. § 1983, violations of
Michigan’s Law Enforcement Administration Act, and a hostile work environment. Two months
after the lawsuit was filed, Young’s attorney withdrew because he was disqualified from the practice
of law for reasons not reflected in the record. Young then entered into a settlement agreement with
the defendants in January of 2000, and the case was dismissed with prejudice.
The present complaint was filed in May of 2002, but, as previously noted, Young did not
promptly serve the Township. In August of 2002, the district court issued an order to show cause
why the case should not be dismissed for failure to prosecute. Young’s new attorney responded that
Young was awaiting the Board’s decision on whether to terminate him. The district judge issued
a second order to show cause in February of 2003 because the case had still not progressed. In
response, Young filed an amended complaint and served the Township. This amended complaint
alleged violations of the ADA, Michigan’s Persons with Disabilities Civil Rights Act (PWDCRA),
employment discrimination, deprivation of procedural due process, retaliatory discharge under
42 U.S.C. § 1983, and a violation of the state’s Whistleblowers’ Protection Act. The Township filed
a motion for summary judgment, arguing that Young’s claims were barred by the doctrine of res
judicata. In September of 2005, the district court agreed and granted the Township’s motion. This
timely appeal followed.
II. ANALYSIS
A. Standard of review
We review de novo the district court’s decision to grant summary judgment. Int’l Union v.
Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where there exists
no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must
construe all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents
a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
B. The Yinger decision
The district court relied on this court’s unpublished decision in Yinger v. City of Dearborn,
No. 96-2394, 1997 WL 735323 (6th Cir. Nov. 18, 1997), in concluding that res judicata barred
Young’s complaint. In Yinger, this court held that res judicata barred a former police officer’s
successive lawsuit for breach of contract and civil-rights violations. Id. at *4-5. At the outset, we
must determine whether the district court’s reliance on Yinger was appropriate.
Brian Yinger was a Dearborn, Michigan police officer who was placed on indefinite medical
leave without pay after two psychologists diagnosed him with paranoid personality disorder and
deemed him psychologically unfit to serve as a police officer. Id. Yinger then filed a complaint in
federal court against the City, its pension board, and various City employees, alleging state and
No. 05-2633 Young v. Green Oak Township Page 5
federal constitutional violations as well as wrongful discharge. His complaint was dismissed. A
third psychologist later found Yinger fit for service based in part on Yinger’s self-report of his
distinguished, but entirely fictitious, military service record. The City declined, after investigation,
to return him to duty. Id.
Yinger then filed a second lawsuit in Michigan state court, alleging breach of contract and
various constitutional violations. This complaint was also dismissed, and the Michigan Court of
Appeals affirmed because Yinger had failed to exhaust his administrative remedies. While his
appeal was pending, Yinger filed an administrative charge against his union, which was denied by
an administrative law judge (ALJ). The Michigan Employment Relations Commission affirmed the
ALJ’s decision. Id. Finally, Yinger applied for a duty disability pension. After hearing argument
from Yinger, the Pension Board granted him a non-duty disability pension, determining that his
paranoid personality disorder was not work related.
Yinger then sued the City in federal court, alleging violations of the ADA and the MHCRA,
failure to accommodate, breach of contract, and several constitutional violations. The district court
dismissed the ADA, MHCRA, breach-of-contract, and due process claims on the basis of res
judicata and the applicable statutes of limitations, and the equal protection claim for failure to state
a cause of action. Id.
This court affirmed, finding that the heart of Yinger’s claims in each lawsuit was his
disagreement with the defendants’ determination that he was unfit to serve as a police officer
because of his psychological condition. Id. at *4. Yinger introduced no new evidence to establish
that he was fit for duty, and the City and other defendants responded to each lawsuit by stating that
they had not changed their position regarding his return to work. Id. The Yinger court noted that
Yinger failed to recognize that “a discrimination claim accrues when the operative decision is made,
not when [a plaintiff] experiences the consequences of that decision.” Id. at *4 (citing Chardon v.
Fernandez, 454 U.S. 6, 8-9 (1981)). Further, the court concluded that Michigan law regarding res
judicata “bars [the parties] from relitigating claims that they could have raised in an earlier action.”
Id. at *5 (citations omitted).
Young contends that Yinger can be distinguished on its facts because Yinger suffered from
a condition (paranoid personality disorder) that rendered him unfit to serve as a police officer. In
contrast, Young argues that he is fit to serve as a police officer with certain reasonable
accommodations. But this is a difference in degree only, and one that we find insufficient to
distinguish Yinger. Young’s situation is factually very similar to Yinger—both involve plaintiffs
who had filed previous lawsuits raising substantially the same claims arising out of the same events
against their respective police departments. Even though Yinger was an unpublished decision of this
court, we conclude that the district court nevertheless appropriately considered Yinger for its
persuasive value.
Young next suggests that we should follow the Tenth Circuit case of Morgan v. City of
Rawlins, 792 F.2d 975 (10th Cir. 1986), which decided a res judicata issue arising from an action
brought in Wyoming. The Wyoming Supreme Court had circumscribed that state’s res judicata
doctrine in the case of Cook v. Elmore, 192 P. 824 (Wyo. 1920), holding that the doctrine does not
bar a second suit “unless the second suit is not only between the same parties, but between them in
the same right or capacity.” Id. at 827. Accordingly, the Morgan court applied Wyoming law to
determine that res judicata did not bar a second case between the plaintiff and his former employer
where the first case alleged procedural issues and the second case alleged substantive issues.
Morgan, 792 F.2d at 979 (finding that “Wyoming common law recognizes equitable considerations
in the application of res judicata and will not preclude litigation for highly technical reasons that
would prevent litigants from presenting their claims against others for determination on their
merits.”) (quotation marks omitted). Michigan, in contrast, has adopted the broad doctrine of res
No. 05-2633 Young v. Green Oak Township Page 6
judicata, barring “every claim arising from the same transaction that the parties, exercising
reasonable diligence, could have raised but did not.” Adair v. Michigan, 680 N.W.2d 386, 397
(Mich. 2004), rev’d on other grounds, 712 N.W.2d 702 (Mich. 2006). We thus find Morgan
distinguishable and of no benefit to Young.
C. Res judicata under Michigan law
The res judicata effect of a state-court judgment in federal court is governed by the Full Faith
and Credit Act, 28 U.S.C. § 1738. See, e.g., Smith, Hinchman & Grylls, Assocs. Inc. v. Tassic, 990
F.2d 256, 257 (6th Cir. 1993) (concluding that the Full Faith and Credit Act requires a “federal court
to look to state court law of res judicata”). Well-settled law directs federal courts to “give to a state
court judgment the same preclusive effect as would be given that judgment under the law of the
State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984). The doctrine of res judicata bars a successive action in Michigan if “(1) the prior
action was decided on the merits, (2) both actions involve the same parties or their privies, and (3)
the matter in the second case was, or could have been, resolved in the first.” Adair, 680 N.W.2d at
396. If the three elements are established, then res judicata serves to bar “every claim arising from
the same transaction that the parties, exercising reasonable diligence, could have raised but did not.”
Adair, 680 N.W.2d at 397.
1. Prior final decision on the merits
The district court reviewed the litigation history between the parties and found that the
Township had established that “a final decision has been reached on the merits by a court of
competent jurisdiction as to the first and second cases filed before the Livingston County Circuit
Court.” Moreover, the record establishes that the district court properly concluded that the claims
raised in the 1995 Action and the 1998 Action, which were decided on the merits, suffice to meet
the first element of the res judicata determination. (In contrast, the 1999 Action was dismissed
pursuant to a settlement agreement.)
2. Same parties
The parties do not dispute that the lawsuit before us involves the same parties as the previous
three lawsuits. This establishes the second element of the res judicata determination.
3. Matters that were or could have been resolved in the prior actions
Young contends that the claims in the instant lawsuit could not have been raised in any of
his prior actions against the Township because the claims had not yet accrued. We will consider
each of his claims below.
a. ADA and PWDCRA claims
The district court agreed with the Township that the case now on appeal constituted an
attempt to challenge the Township’s original, unchanged decision not to permit Young to return to
work. Young concedes that “he has had prior claims against the Township,” but asserts that “the
claims in his present case were not ripe for adjudication at the time.” Specifically, Young argues
that his claims arising from the VPA hearing did not accrue until he was actually terminated in 2003.
Young also contends that he could not have brought the present action until he received a
right-to-sue letter from the EEOC, which he did not receive until 2002.
The Township, however, argues that Young is simply seeking to launch a fresh attack on the
Township’s 1993 decision that ended his active duty service. Both the 1995 Action and the 1998
No. 05-2633 Young v. Green Oak Township Page 7
Action raised claims relating to the Township’s allegedly discriminatory action and, in both cases,
the Township prevailed.
The district judge, applying Yinger, found that the “[d]efendant in this case has never
changed its position from its decision in 1993 that [Young] was unable to return to work” because
his disability rendered him unable to perform the duties of a police officer. “An employer’s refusal
to undo a discriminatory decision is not a fresh act of discrimination.” Yinger, 1997 WL 735323, at
*5 n.3. The Michigan Court of Appeals had found in favor of the defendants on the age and
disability-discrimination claims in Young’s 1995 Action, and the state trial court granted summary
disposition to the defendants on all of Young’s claims in the 1998 Action. Because those actions
included claims for age and disability discrimination, as well as alleged violations of the MHCRA
(the predecessor to the PWDCRA), the district court properly held that res judicata barred Counts
I (ADA) and II (PWDCRA) of Young’s present lawsuit.
b. Employment discrimination claims under 42 U.S.C. § 1983
The district court found that Young’s § 1983 claims for employment discrimination,
retaliatory discharge, and procedural due process violations were barred by res judicata as well.
These claims were based on the Board’s decision to terminate Young after it conducted a hearing
under the VPA in 2002. The district court determined that “[t]he Board’s decision was not a fresh
act of discrimination because it was the same decision made by Defendant in 1993 not to return
Plaintiff to work.” With respect to the employment discrimination claim (Count III), Young’s 1995
Action alleged “constructive discharge,” indicating that Young recognized that he could bring an
employment discrimination claim at least as early as 1995.
But Young contends that he could not have raised his § 1983 claims for employment
discrimination and retaliatory discharge until after the 2002 VPA hearing. He argues that “[n]either
Officer Young nor anyone else could have anticipated that he would be terminated at some unknown
future point in time for whatever reasons.” At the time of the prior actions in the 1990s, he was still
employed by the Township, had not yet made his 2001 and 2002 requests for accommodation, had
not had a VPA hearing or been terminated by the Board, and had not received a right-to-sue letter
from the EEOC. All of these points, however, are insufficient to overcome the application of res
judicata to most of his claims.
Although Young was technically still employed by the Township prior to January of 2003,
he had been sufficiently dissatisfied with his situation to complain of employment discrimination,
retaliation, and constructive discharge long before. Young had requested accommodation on at least
two occasions prior to 2001, once when he sought to return to work on light duty and again when
he applied for a position as a follow-up investigator with the Police Department. These requests
were denied, and the denials formed the basis for Young’s first charge of discrimination with the
EEOC in 1993. The record does not include a right-to-sue letter from that time, but Young alleged
employment discrimination and retaliation in both the 1995 Action and the 1998 Action.
All of Young’s employment discrimination and retaliation claims arise from the Township’s
refusal to return him to work. We thus conclude that the district court properly found that res
judicata barred the relitigation of these claims.
c. Whistleblowers’ Protection Act claim
Young also argues that the district court erred in granting summary judgment in favor of the
Township on his Whistleblowers’ Protection Act (WPA) claim. He contends that he was terminated
in retaliation for bringing an EEOC discrimination charge and for contacting public officials and the
media about alleged violations of Police Department reporting rules, both of which are protected
activities under the WPA. See Phinney v. Perlmutter, 564 N.W.2d 532, 553 (Mich. Ct. App. 1997)
No. 05-2633 Young v. Green Oak Township Page 8
(discussing the required elements of a prima facie case under the WPA). The district court found
that Young’s WPA claim arose from the same allegedly discriminatory act—the Township’s refusal
to return him to work—as set forth in both the 1995 and the 1998 Actions.
Under the WPA,
[a]n employer shall not discharge, threaten, or otherwise discriminate against an
employee . . . because the employee . . . reports . . . , verbally or in writing, a
violation or a suspected violation of a law or regulation or rule promulgated pursuant
to law of this state, a political subdivision of this state, or the United States to a
public body, unless the employee knows that the report is false, or because an
employee is requested by a public body to participate in an investigation, hearing,
or inquiry held by that public body, or a court action.
Mich. Comp. Laws § 15.362. Nothing in the WPA prevented Young from bringing a claim under
the Act prior to his termination.
As previously discussed, Young raised two claims of retaliation for engaging in protected
activity in his 1995 Action: the filing of a Charge of Discrimination with the EEOC and the filing
of a workers’ compensation claim. This supports the district court’s determination that Young was
aware that he could bring a retaliation claim as of 1995. In his present complaint, Young alleges that
the Township and members of the Police Department began retaliating against him for his
whistleblowing activities as early as 1992. But he gives no reason as to why he could not have
raised his WPA claim in a prior action. The statutory language clearly allowed him to do so. Res
judicata thus operates to bar his WPA claim in the present lawsuit.
d. Veterans Preference Act and 42 U.S.C. § 1983 due process claims
Young contends that his due process claim under § 1983 did not accrue until after the Board
issued its opinion terminating his employment because, prior to that time, he technically remained
a Township employee. Both the language of the VPA and a survey of Michigan caselaw support
his contention that he could not have raised these claims in any of his earlier actions against the
Township. See Mich. Comp. Laws § 35.402 (2001) (“No veteran . . . shall be removed . . . except
for . . . incompetency; and such veteran shall not be removed . . . except after a full hearing
before . . . the township board . . . .”) (emphasis added); see also, e.g., DeLeon v. City of Ecorse,
2006 U.S. Dist. LEXIS 671 (E.D. Mich. Jan. 11, 2006) (denying summary judgment to the city
because disputed issues of fact remained about whether the city’s failure to hold a VPA hearing
before terminating a police officer violated his due process rights); Sherrod v. City of Detroit, 625
N.W.2d 437, 442 (Mich. Ct. App. 2001) (“The failure of a defendant to comply with the [notice and
hearing] procedures contained in the VPA may support a due process claim.”); Jackson v. Detroit
Police Chief, 506 N.W.2d 251, 253 (Mich. Ct. App. 1993) (“The VPA gave plaintiff a right to notice
and a hearing before his demotion.”). Res judicata, therefore, does not apply. For the reasons
discussed below, however, these claims fail on their merits.
D. Young’s due process claims
1. Young received all of the process that he was due
Although the district court erred when it found that res judicata precluded Young’s
procedural due process claim, summary judgment was still appropriate because Young was afforded
all of the process that he was due. See Christophel v. Kukulinsky, 61 F.3d 479, 485 (6th Cir. 1995)
(“[T]he deprivation of property by state action is not itself unconstitutional; what is unconstitutional
is the deprivation of such an interest without due process of law.”) (quotation marks omitted)
(emphasis in original). The VPA provides that a veteran is entitled to written notice stating the
No. 05-2633 Young v. Green Oak Township Page 9
cause or causes of removal, transfer, or suspension at least 15 days prior to the hearing. Mich.
Comp. Laws § 35.402. A review of the record indicates that the Board did not violate Young’s due
process rights under the VPA. In accordance with the statute’s requirements, the Board provided
written notice of the hearing and stated that the Board would
consider whether or not [Young] should be removed (terminated) as an employee of
the Green Oak Township Police Department on the basis that [Young was] unable
to perform the essential functions of a Green Oak Township Police Officer, with or
without an accommodation, and that the conditions upon which [Young had]
requested to return to work . . . would pose an undue hardship on the Green Oak
Township Police Department.
This notice came in a letter dated June 4, 2002, and the hearing was scheduled for June 19, 2002.
Young made no claim that this sequence violated the 15-day notice requirement of the VPA. He
was, moreover, permitted to have an attorney represent him at the hearing, to present evidence, to
review hearing transcripts, and to submit a posthearing brief to the Board.
The VPA further requires that “removal, suspension or transfer shall be made only upon
written order of . . . the township board.” Mich. Comp. Laws § 35.402. Young was terminated in
accordance with the statute. In its decision, the Board found that Young had a “continuing physical
problem of a degenerative nature,” but was no longer disabled as a result of a work-related injury.
The Board further concluded that “[i]t is the opinion of the Green Oak Township Board that . . . Mr.
Young is physically incompetent to return to full time police duties with the Township.”
Accordingly, the Board adopted the recommendation of Chief Brookins that Young’s employment
be terminated.
Young was thus afforded all of the process that he was due under the VPA. So even though
the district court erred in finding that Young’s procedural due process claim under § 1983 was
barred by res judicata, summary judgment for the Township was appropriate on the merits.
2. The Township did not violate Young’s right to substantive due process
Young also raises a substantive due process argument, although he does not identify it as
such. The VPA takes veterans out of an at-will employment regime and provides them with a
property interest in their continued employment, which can be altered only by a pretermination
hearing and a finding of “just cause” as specified by statute:
No veteran . . . shall be removed or suspended, or shall, without his consent, be
transferred from such office or employment except for official misconduct, habitual,
serious or willful neglect in the performance of duty, extortion, conviction of
intoxication, conviction of felony, or incompetency . . . except after a full
hearing . . . before the township board.
Id. Young alleges that the Township discriminated against him by terminating him for a reason not
permitted under the VPA.
The substantive component of the Due Process Clause protects those rights that are
“fundamental,” meaning those rights that are “implicit in the concept of ordered liberty,” Palko v.
Connecticut, 302 U.S. 319, 325 (1937), overruled on other grounds by Benton v. Maryland, 395
U.S. 784 (1969). This court has “recognized that the Fourteenth Amendment has a substantive due
process component that protects specific fundamental rights of individual freedom and liberty from
deprivation at the hands of arbitrary and capricious government action.” Sutton v. Cleveland Bd.
of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992) (quotation marks and citation omitted). “Absent the
infringement of some ‘fundamental’ right,” however, this court has held that “the termination of
No. 05-2633 Young v. Green Oak Township Page 10
public employment does not constitute a denial of substantive due process.” Id. at 1351. As the
Eleventh Circuit has stated:
[A]reas in which substantive rights are created only by state law (as is the case with
tort law and employment law) are not subject to substantive due process protection
under the Due Process Clause because “substantive due process rights are created
only by the Constitution.” As a result, these state law based rights constitutionally
may be rescinded so long as the elements of procedural—not substantive—due
process are observed.
McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994) (quoting Regents of Univ. of Mich. v. Ewing,
474 U.S. 214, 229 (1985) (Powell, J., concurring)); see also Valot v. Southeast Local Sch. Dist. Bd.
of Educ., 107 F.3d 1220, 1233 (6th Cir. 1997) (relying on Ewing in finding that public employees
do not have a “fundamental” right to unemployment compensation).
To the extent that a substantive due process claim is available, Young must demonstrate that
the Township’s decision to terminate his employment had no rational basis. See, e.g., Thompson
v. Ashe, 250 F.3d 399, 407 (6th Cir. 2001) (reviewing a no-trespass policy, which “does not
implicate any fundamental right, . . . under the rational basis standard”).
The Township Clerk notified Young that the Board would be conducting a hearing to
consider his termination “on the basis that [Young was] unable to perform the essential functions
of a Green Oak Township Police Officer with or without an accommodation.” A challenge to
Young’s possible “incompetency” under the VPA was thus clearly raised. The Board held a VPA
hearing over two days in July and August of 2002. It heard testimony from Chief Brookins and from
a sergeant within the Police Department. The Board further considered documentary evidence,
including the state administrative decision that Young “no longer suffer[ed] a work related disability
and that any problems he currently suffers are the result of a degenerative condition,” and reviewed
posthearing briefs submitted by both parties.
In its written decision, the Board adopted Chief Brookins’s recommendation to terminate
Young’s employment. It noted that “the issue of competency to the position of police officer was
of main concern to the Township Board.” Both the testimonial and documentary evidence
demonstrated that “physical competency is a mandatory component of functioning as a certified
police officer.” The Board then found that,
[b]ased on the statements made by Mr. Young himself in his request to be returned
to employment with limited duties and considering the findings of the Workers’
Compensation Bureau in recognizing a continuing physical problem of a
degenerative nature, there is little doubt that Mr. Young’s present physical situation
would prevent him from returning to active duty as a Green Oak Township police
officer with fully physical capacity. . . . It is the opinion of the Green Oak Township
Board that based upon testimony presented, Mr. Young is physically incompetent to
return to full time police duties with the Township.
Young argues that “incompetency” under the VPA does not include a physical disability such
as his. Although no Michigan court has construed the term“incompetency” under the VPA, the
Township points to a Minnesota Supreme Court case that concluded that the term as used in veterans
preference statutes encompasses both physical and mental competency. Myers v. City of Oakdale,
409 N.W.2d 848 (Minn. 1987). The Myers plaintiff was a police officer who suffered a work-related
back injury. After the officer was placed on indefinite medical leave, he sought a writ of mandamus
to compel his employer to provide him with a hearing under the Minnesota Veterans Preference Act.
Id. at 849. That Act, which is substantially similar to Michigan’s VPA, prohibits the removal of an
No. 05-2633 Young v. Green Oak Township Page 11
employee-veteran “except for incompetency or misconduct shown after a hearing.” Id. at 850. The
Myers court surveyed decisions from the courts of other states that had construed the term
“incompetency” in similar circumstances. Id. at 851-52. From this review, the Myers court
determined that “‘incompetency’ is to be construed according to its common and approved usage,
which includes want of physical fitness.” Id. at 852; see also Tafoya v. New Mexico State Police
Bd., 472 P.2d 973, 977 (N.M. 1970) (referring to Webster’s Third International Dictionary’s
definition of “incompetence” as including a “lack of physical, intellectual, or moral ability”); Collins
v. Iowa Liquor Control Comm’n, 110 N.W.2d 548, 550 (Iowa 1961) (same); Horosko v. Sch. Dist.
of Mt. Pleasant Twp., 6 A.2d 866, 869-70 (Pa. 1939) (reviewing the definition of “incompetency”
in both general purpose and law dictionaries and finding the lack of physical ability to be included
in all of them).
We find the reasoning in Myers convincing and are persuaded that the Michigan Supreme
Court would likewise conclude that the term “incompetency” as used in the VPA encompasses an
employee’s physical inability to perform the essential functions of his or her job. Young has not
identified any caselaw that conflicts with this interpretation. The Township presented evidence at
the VPA hearing that Young was not physically capable of performing all of the functions of a
Township police officer. Young did not attempt to counter that evidence, nor did he object to the
Board’s consideration of the Workers’ Compensation Bureau decision that he was no longer
suffering a work-related disability.
The Township also introduced evidence that its police officers are required to comply with
statewide certification requirements. These requirements include certain physical components, such
as the ability to forcibly effect an arrest, to climb or jump over obstacles and uneven surfaces, to lift
or drag people and objects, and to pursue fleeing suspects on foot in unfamiliar terrain. Sufficient
evidence was presented at the VPA hearing about Young’s back problems and requests for
accommodation to provide a rational connection between the Township’s need for police officers
who can fulfill all of the functions of their employment and the Board’s determination that Young
was physically incompetent to do so. See Thompson, 250 F.3d at 407.
We thus conclude that Young’s substantive due process claim lacks merit. Because the
Board did not violate Young’s due process rights when it terminated him, Young’s § 1983 claims
also fail on the merits. See, e.g., Ewolski v. City of Brunswick, 287 F.3d 492, 516 (6th Cir. 2002)
(finding that a municipality was not liable for the harm to the victims of an armed hostage-taker
where the plaintiff could not show that there had been any constitutional violation). We therefore
affirm the district court’s grant of summary judgment in favor of the Township on Young’s due
process claims.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.