Tamie Luty v. City of Saginaw ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0107n.06
Filed: February 10, 2009
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UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TAMIE M. LUTY, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CITY OF SAGINAW and GERALD CLIFF, ) EASTERN DISTRICT OF MICHIGAN
)
Defendants-Appellees. )
Before: DAUGHTREY and KETHLEDGE, Circuit Judges; RESTANI,* Judge.
PER CURIAM. Plaintiff Tamie Luty, a former Saginaw police lieutenant, appeals
from a jury verdict against her in this First Amendment retaliation and gender discrimination
case, in which she claimed that the City of Saginaw and Chief of Police Gerald Cliff
wrongfully demoted her because she refused to submit to polygraph testing during an
internal investigation. On appeal, Luty contends that the district court erred both in
permitting the introduction of hearsay evidence and in failing to give a limiting instruction
concerning that evidence; in prohibiting the plaintiff from introducing evidence of prior
discrimination by the defendants; by including the so-called “Mount Healthy question” on
*
The Hon. Jane A. Restani, Chief Judge of the Court of International Trade, sitting by
designation.
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the jury verdict form; in denying the plaintiff’s post-verdict motion for judgment as a matter
of law; and in failing to award attorneys’ fees to the plaintiff as the prevailing party in this
litigation. We find no reversible error in connection with any of these issues and, therefore,
affirm the district court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The events giving rise to the plaintiff’s complaint in this case trace back to a secret
tape-recording of a Saginaw Police Department supervisors’ meeting in June 2005 called
by Chief Cliff to discuss the Saginaw City Council’s decision to cut the department’s annual
budget. Plaintiff Luty was among the command officers at the meeting. Soon after it
ended, a transcript of Chief Cliff voicing his frustration with the council’s action came to
light and was publicized at a subsequent city council meeting. Despite the fact that Cliff
had not authorized anyone to tape-record the meeting, the transcript accurately reflected
his somewhat intemperate comments at the supervisor’ s meeting, including his references
to certain council members as “idiots” and “morons.”
The unauthorized – and non-consensual – audio-taping of Chief Cliff by a fellow
officer violated an order issued in 2002 by then Chief of Police Donald Pussehl and the
Department’s code of ethics. Accordingly, Cliff called another meeting of his command
staff to discuss the matter. At that meeting, all the command officers present, including
Luty, agreed to submit to investigative testing in order to clear themselves of participation
in the secret taping. Specifically, they agreed to be interviewed by an independent
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examiner who would give each of them a series of questionnaires or “scan tests” about
their involvement in the taping incident. The examiner would then eliminate as suspects
those officers who satisfactorily completed the scan tests. After sufficiently narrowing the
pool of suspects, the examiner then proposed to test the remaining suspects by polygraph.
The parties later disputed whether the suggestion for this investigative process arose
voluntarily from the officer corps or from Chief Cliff himself. Nevertheless, it is clear that
the scan test and polygraph procedure were not part of an official investigation and that
participation in it was not officially compelled.
Although the plaintiff initially agreed to submit to the scan test and, if necessary, the
polygraph, she later decided not to participate, explaining that it would violate both her
employment contract and police department policy. The testing performed by the examiner
ultimately exonerated all command personnel who had been present at the June 2005
meeting except, of course, Luty.
Apart from the scan-test procedure, Cliff ordered an internal affairs investigation into
the taping incident to be conducted by Sergeants Kevin Revard and Terri Johnson-Wise.
During the course of the investigation, Revard and Johnson-Wise were told that the plaintiff
had secretly tape-recorded conversations with fellow officers on at least two prior
occasions within months of the June 2005 incident. Former Chief Pussehl revealed that
he issued his 2002 order prohibiting surreptitious audio-taping because of an incident
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involving the plaintiff and former Deputy Chief Tom McGarrity. The plaintiff later admitted
during trial that she had secretly taped McGarrity in the past.
At the conclusion of the investigation, Revard and Johnson-Wise issued a report,
as follows:
Based on statements taken from Sgt. Lively, former Chief Don Pussehl, and
Lt. Luty’s reluctance to participate in the written questionnaire, suspicion
does point to Lt. Luty as the person who may have secretly tape recorded
the meeting held on June 7, 2005. However, due to a lack of direct
evidence, these investigators are unable to determine who secretly tape-
recorded the meeting.
Cliff testified that despite the inconclusive nature of the evidence, he considered all of the
circumstantial evidence and decided that the plaintiff was responsible for the unauthorized
taping and publication of his remarks. In making this determination, Cliff testified that he
relied heavily on statements from command officers about the plaintiff’s alleged past secret
tape-recording activities. Cliff also considered past comments allegedly made by Luty
during an earlier, unrelated conversation about her potential transfer from an investigative
division to a patrol division. In that conversation, Cliff testified, Luty pledged “to do
whatever she had to do to protect her position.” Cliff also admitted considering the
plaintiff’s failure to participate in any “vindicating effort like the rest of the commanders did,”
a clear reference to Luty’s refusal to submit to the scan test or polygraph process.
As a result of the internal affairs investigation and Cliff’s subsequent determination
that Luty had recorded the meeting, Cliff recommended to the city manager that Luty be
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demoted to the rank of sergeant for a period of one year. City Manager Cecil Collins then
demoted the plaintiff temporarily, in accordance with Chief Cliff’s recommendation.
After the plaintiff was restored to her proper rank, she faced at least three more
internal affairs investigations, none of which concerned the June 2005 tape-recording
incident. In the first, the plaintiff filed an internal affairs complaint against Sergeant
Anjanette Tuer for unprofessional conduct. The assigned investigator, Lieutenant Paul
Crane, determined that although Tuer had engaged in some minor wrongful conduct, the
plaintiff had engaged in several serious improprieties. As a result of Crane’s findings, Cliff
ordered an internal affairs investigation into the plaintiff’s improper conduct. That
investigation resulted in a report concluding that the plaintiff had committed several policy
violations, which led to an official reprimand.
In the second investigation, a fellow officer alleged that the plaintiff had engaged in
discourteous conduct. The Department reprimanded the plaintiff for a courtesy violation.
However, this discipline was later overturned. Also rescinded, on procedural grounds, was
a suspension that resulted from a third investigation into two separate complaints against
the plaintiff charging her with creating a hostile work environment.
Based primarily upon these disciplinary actions, the plaintiff filed suit in the district
court alleging gender discrimination in violation of federal and state law and retaliation in
violation of the First Amendment and the Michigan Workers’ Disability Compensation Act.
The jury found for the defendants on all claims, and the district court entered judgment
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against the plaintiff after denying her motion for judgment as a matter of law. She now
appeals that judgment.
DISCUSSION
A. First Amendment Claims
At trial, the plaintiff claimed that the defendants demoted her because she refused
to participate in the investigative testing, that her refusal constituted speech protected by
the First Amendment, and that the defendants’ adverse employment action therefore
violated her First Amendment rights. On appeal, Luty makes two arguments based on that
claim. First, she contends that the district court erred by submitting a verdict form to the
jury that misapplied the governing precedent on public employee speech. Second, the
plaintiff argues that the district court erred by denying her motion for judgment as a matter
of law on her First Amendment retaliation claim. Because we find that the plaintiff did not
engage in constitutionally protected speech, the plaintiff’s appeal on these grounds must
fail.
Obviously, the first question raised by the facts in this case is whether the plaintiff’s
conduct in refusing to undergo testing constitutes speech, protected or otherwise, given
that the First Amendment’s protection extends only to conduct that is “inherently
expressive.” Rumsfeld v. Forum for Academic & Inst. Rights, Inc., 547 U.S. 47, 66 (2006).
Hence, for the First Amendment to come “into play,” we must ask whether “an intent to
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convey a particularized message was present, and whether the likelihood was great that
the message would be understood by those who viewed it.” Texas v. Johnson, 491 U.S.
397, 404 (1989) (internal brackets omitted). In the instant case, it is difficult – if not
impossible – to detect any particular message emanating from Luty’s conduct in refusing
to undergo the scan test or polygraph. We therefore conclude that the plaintiff’s First
Amendment claims must fail because she did not allege or establish conduct on her part
that amounted to speech.
But, even if the conduct in question could be said to constitute speech, we could not
hold that it was protected by the First Amendment. As we have repeatedly held, “in
determining whether a public employer has violated the First Amendment by firing a public
employee for engaging in speech,” we must first “ascertain whether the relevant speech
addressed a matter of public concern.” Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2004).
In addressing that question, we are guided by Connick v. Myers, 461 U.S. 138 (1983), the
Supreme Court’s “most instructive case on this issue.” Farhat, 370 F.3d at 589. Whether
an employee’s speech regards a matter of public concern is determined by the “content,
form, and context of a given statement, as revealed by the whole record.” Connick, 461
U.S. at 147-48. We have refined the public concern test by emphasizing that the court
must determine the focus, point, purpose, and intent of the speech in question or the
“communicative purpose of the speaker.” See Farhat, 370 F.3d at 592.
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Speech is of public concern if it “involves issues about which information is needed
or appropriate to enable members of society to make informed decisions about the
operation of their government.” Id. at 590. By contrast, when the employee speech
“cannot fairly be considered as relating to any matter of political, social” or community
interest, government officials enjoy wide discretion in the management of their offices. See
Connick, 461 U.S. at 146. It is clear in this case that the plaintiff’s “speech” was of no
public concern whatever and, therefore, is not protected by the First Amendment. Indeed,
nothing in the record or in her brief on appeal suggests that the plaintiff’s conduct
concerned anything other than an internal police department matter. At trial, the plaintiff
cited her employment agreement and departmental policy as her reasons for refusing the
scan test or polygraph. But, although some internal police policies may be a legitimate
focus of community interest, we cannot discern an issue of public concern here. Because
we conclude that there is no basis for finding a First Amendment violation as a matter of
law, it becomes unnecessary to address the “Mount Healthy question.”1 There is likewise
no reason to review the plaintiff’s claim that she was entitled to judgment as a matter of law
on her constitutional claim, because there was no legal basis upon which to predicate a
constitutional violation.
1
In Mount Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977),
the Supreme Court created a burden-shifting mechanism that allows a defendant employer to rebut evidence
of an alleged constitutional violation by establishing, by a preponderance of the evidence, that the same
adverse employment action would have occurred even the absent the constitutional violation.
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B. Evidentiary Rulings
Regarding the plaintiff’s claim that the district court improperly restricted her from
presenting the testimony of Brenda MacDonald and Martin Singleton at trial, purportedly
to demonstrate Chief Cliff’s propensity to discriminate against women, it appears that the
district court excluded these witnesses because the plaintiff had failed to comply with the
court’s scheduling order. That order required disclosure of the name of each individual
likely to have information that the plaintiff might use to support her claims, as mandated
by Federal Rule of Civil Procedure 26(a)(1)(A), by June 15, 2006. The deadline for the
completion of all discovery was January 31, 2007. However, the plaintiff did not identify
MacDonald or Singleton as witnesses until late April 2007. Because the plaintiff failed to
comply with the scheduling order, the district court was authorized to exclude their
testimony under Federal Rules of Civil Procedure 16(f)(1) and 37(b)(2)(A)(I). Those rules
allow the district court to “issue any just orders,” including an order prohibiting the
disobedient party from introducing designated matters into evidence, if a party or its
attorney fails to obey a scheduling order. The rules further provide that a party’s failure to
identify a witness as required by Rule 26(a) precludes that party from using that witness,
unless the failure is “substantially justified” or harmless. Fed. R. Civ. P. 37(c)(1).
In this case, the plaintiff made no argument that the district court exceeded its
authority under Rule 16(f), nor did she argue that her failure to identify the witnesses in a
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timely fashion was harmless to the defendants. Instead, she asserted that she had not
learned of MacDonald’s and Singleton’s past allegations against Cliff until April 2007. In
addition, she contended that the defendants were guilty of violating Rule 26 because they
knew about the two witnesses and failed to disclose their existence in response to
interrogatories, one of which requested information about persons that the defendants had
“any reason to believe may have knowledge of the facts of this case or discoverable
material concerning the case.” The plaintiff argues that if the defendants had disclosed the
information, the witnesses would have been identified and disclosed much sooner in the
litigation. However, it appears that the plaintiff did not seek to compel responses to these
interrogatories and, as a result, it cannot be said that the defendants’ failure to respond
“substantially justified” the plaintiff’s late additions to the witness list. Nor can we conclude,
given these circumstances, that the district court abused its discretion by not
accommodating the plaintiff’s late request.
The plaintiff next contends that at several points throughout the trial, the district
court improperly admitted hearsay evidence or failed to instruct the jury that the evidence
was received for a limited purpose. We have reviewed each of the district court’s hearsay
rulings and find that none constitutes a violation of the hearsay rule. Moreover, the plaintiff
specifically requested a limiting instruction only once at trial and, on appeal, has failed to
indicate which of the alleged hearsay statements warranted a limiting instruction. Finally,
because we fail to find error by the district court in its rulings on the hearsay objections,
and because the plaintiff has not identified any harm caused by the district court’s refusal
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to issue a limiting instruction, we conclude that there was no abuse of discretion in this
regard.
C. Attorneys’ Fees
Finally, the plaintiff claims that because the jury specifically found a violation of her
First Amendment rights attributable to the defendants, she should be considered a
prevailing party and that she was, therefore, entitled to an award of attorneys’ fees under
42 U.S.C. § 1988(b). Under that statutory provision, only the prevailing party in an action
brought under 42 U.S.C. § 1983 action is entitled to collect attorney fees. A plaintiff may
be considered a prevailing party if she “‘succeed[s] on any significant issue in the litigation
which achieves some of the benefit the parties sought in bringing the suit.’” Women’s Med.
Prof’l Corp. v. Baird, 438 F.3d 595, 615 (6th Cir. 2006) (quoting Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)). The “touchstone of the prevailing party inquiry must be the material
alteration of the legal relationship of the parties, such that the defendant’s behavior is
modified in a way that directly benefits the plaintiff.” Id. (internal citations, quotations, and
punctuation omitted). “No material alteration of the legal relationship between the parties
occurs until the plaintiff becomes entitled to enforce a judgment, consent decree, or
settlement against the defendant.” Farrar v. Hobby, 506 U.S. 103, 113 (1992). In and of
itself, “the moral satisfaction that results from any favorable statement of law cannot
bestow prevailing party status.” Id. at 112-13 (internal quotation marks and brackets
omitted).
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Here, of course, there is no “judgment, consent decree, or settlement against the
defendant[s]” that the plaintiff could enforce. Indeed, despite the jury’s (legally
unsustainable) special finding that the plaintiff had suffered a constitutional violation, the
jury also determined that Chief Cliff “would have undertaken the adverse employment
action against plaintiff” even in the absence of the purported First Amendment violation,
resulting in a verdict on the section 1983 claim in favor of the defendants. Obviously, this
verdict effectively nullified the special finding and set up a complete bar to the defendants’
liability. See Ballard v. Muskogee Regional Med. Ctr., 238 F.3d 1250, 1253-54 (10th Cir.
2001) (discussing strikingly similar set of circumstances). Ultimately then, the jury’s finding
that the defendants “violated the Constitution, unaccompanied by an enforceable judgment
on the merits, does not render the plaintiff a prevailing party.” Farrar, 506 U.S. at 112.
Hence, there is no basis for an award of attorneys’ fees to the plaintiff in this case.
CONCLUSION
For the reasons set out above, we AFFIRM the district court’s judgment.
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