UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THERESA ELY,

Plaintiff, Case Number 14-14500

v. Honorable David M. Lawson

DEARBORN HEIGHTS SCHOOL

DISTRICT NO. 7, TODD THIEKEN,

and JEFFREY L. BARTOLD,

Defendants.

______________________________/

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Theresa Ely filed suit against her employer and her supervisors after they disciplined

her for speaking out about possible asbestos contamination at a school where she worked as a parttime custodian. She alleges that the defendants unlawfully restrained her right to speak and

retaliated against her in violation of the First Amendment. Both sides filed motions for summary

judgment. The defendants contend that the plaintiff has failed to advance any viable claim that can

be supported by the record now before the Court, and the individual defendants argue that they are

entitled to qualified immunity. The plaintiff contends that no fact question remains for trial on her

claims and the Court should grant judgment as a matter of law in her favor and award compensatory

and exemplary damages. The plaintiff has failed to establish a claim against the Dearborn Heights

School District Number 7 under Monell v. Department of Social Services, 436 U.S. 658 (1978), but

fact questions preclude summary judgment in favor of the individual defendants and the plaintiff. 

Therefore, the Court will grant in part and deny in part the defendants’ motion for summary

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judgment, deny the plaintiff’s motion for summary judgment, and dismiss the case against the

School District only.

I.

Ely began working for defendant Dearborn Heights School District Number 7 as a substitute

custodian in 2009. During the summer months of 2011 and 2012, she worked as a custodian at

Annapolis High School. During the 2012 summer months, the plaintiff’s supervisor directed her to

sand floor tiles in the school building, but the plaintiff objected because she was told during the

previous summer that the tiles contained asbestos. The supervisor told Ely that “sanding the tiles

would be fine,” and when she and other workers continued to object, she was told to collect a sample

of the dust from the floor tiles for testing. In September 2012, a coworker told Ely that the testing

of the dust sample revealed no asbestos. However, in January 2013, Ely learned that another

employee who worked at Annapolis High School had died of mesothelioma, and members of the

deceased employee’s family told Ely that the school district “had sanded the asbestos floor tiles for

years.” Ely became concerned, particularly when she recalled that during the summer months there

were numerous employees and students of the school district present in the building while the floor

tile sanding was done. Ely testified that she even remembered that she saw students on one occasion

writing messages in the sanding dust that was collected on the floor, while Ely and a coworker were

busy sanding and cleaning up the dust.

In March 2013, Ely received a copy of what appeared to be a report of testing done on dust

samples taken from the Annapolis school. She questioned the authenticity of that report because (1)

it referred to difficulty encountered in collecting samples due to “fire damage,” when there was

never any fire at the school during the summer months in 2012; (2) the report referred in several

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places to conditions at “the home,” when the school obviously is not a residence; and (3) the report

stated that samples were collected by the inspector, when the samples from the Annapolis school

actually were collected by one of Ely’s co-workers. Ely also points out that the report is undated

and unsigned, and she maintains that the inspector whose name appears on the report stated that he

did not write it. She contends that electronic metadata embedded in the Adobe Portable Document

Format (PDF) version of the report indicates that it was created on September 14, 2012 by “Kellsey

Whittaker,” who the plaintiff asserts was a contractor working for the school district.

In April 2013, after reviewing the questionable testing report, Ely contacted the Michigan

Occupational Safety and Health Administration (“MIOSHA”) and filed a complaint stating her

concerns about the possible asbestos hazard at the Annapolis school. She also discussed her

concerns with family members, co-workers, and other members of the community, and she contacted

a local television news station, which sent a reporter to her home to interview her. On May 15,

2013, the MIOSHA investigator assigned to the complaint told Ely that samples from the floor tiles

she had sanded in 2012 were tested and found to contain asbestos, and the investigator told her that

the agency was going to issue citations to the school district for the resulting safety and health

violations. He also told Ely that she should be tested to determine if she had suffered any possible

health consequences from the asbestos exposure. The next day, the district’s Superintendent of

Schools, defendant Jeffrey Bartold, sent a memorandum to all employees stating that there were no

asbestos hazards at any of the district’s schools; that letter cited the negative test results from the

2012 testing report.

On May 23, 2013, Bartold sent a letter of reprimand to Ely directing her to stop spreading

“false rumors” about asbestos hazards at the district’s schools. The letter stated:

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It has come to our attention that you have made comments to other Dearborn Heights

School District #7 employees regarding the presence of asbestos in District buildings

and the harmful medical effects that may result from exposure. Employees have

come forward indicating that you have called them and told them to get “tested” for

exposure to asbestos. As I have indicated to you and all other employees, two

private companies and the Michigan Occupational Safety and Health Administration

(“MIOSHA”) have concluded that the District’s asbestos levels are within state and

federal regulations. Further, the investigator denied ever stating that any employee

should get “tested” due to contact with asbestos.

. . .

The District interprets your statements to other employees regarding the presence of

asbestos dust in any District building or any continued harm to employees or other

individuals caused by contact with asbestos to be false and made with the intent of

inflaming and provoking a reaction and concern from those employees and

individuals.

. . .

This letter serves as a written reprimand for violating [the District Policies] stated

above. Further, you are directed to cease notifying employees and other individuals

that the District maintains levels of asbestos that are not within state or federal

regulations. You are also directed to cease all communication to employees or other

individuals that they should get “tested” due to the effects of asbestos contamination.

Plf.’s Mot for Summ J. [dkt. #20], Ex. 6, Letter of Reprimand dated May 23, 2013 (Pg ID 371-72). 

The letter indicates that a copy was placed in the plaintiff’s personnel file.

On June 5, 2013, inspector Michael T. Mason, a Health Manager with MIOSHA, sent a letter

to Ely stating that the agency had inspected Annapolis High School and that the “investigation

revealed conditions which were determined to be in violation of the Michigan Occupational Health

Standards.” The agency’s investigation report that was enclosed with the letter stated that an

inspection was conducted on April 30, 2013 at Annapolis High School, and that “[t]his investigation

has resulted in a citation.” The report cited the following specific violations that were assessed as

a result of the inspection:

Discussions, observations and review of documentation indicated that during sanding

of asbestos-containing floors, employees were exposed to asbestos-containing floor

materials. Some damaged asbestos-containing flooring materials were observed. 

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Appropriate personnel protective equipment was not provided. Therefore, violations

were determined.

. . .

Observations in the areas where the sanding of asbestos-containing flooring material

occurred did not reveal any suspect asbestos-containing debris at this time. In

addition, these incidents occurred several months ago, and we did not observe how

contaminated clothing was disposed of. However, since sanding of

asbestos-containing flooring materials is prohibited because of the potential

significant exposure, violations were determined.

Ex. 8, Report of Investigation dated June 5, 2013, at 2 (Pg ID 389). The report specifically noted

that investigators had observed “9x9 vinyl floor tile material,” described as “5% Chrysotile-Tile”

(Chrysotile appears to be a form of asbestos). The agency assessed three citations against the school

district which were noted as “serious,” and it imposed a total of $13,500 in fines. The agency also

directed the school district immediately to address the violations by (1) performing “initial

monitoring” of employees who may have been exposed to asbestos; (2) at least once per year giving

asbestos related safety training to custodial employees working in areas with asbestos-containing

floor materials; and (3) adopting specific procedures during floor maintenance to ensure that

machines used to clean and polish floors would not damage the asbestos-containing floor tile. The

specific directions given for floor maintenance were as follows:

Prohibit sanding of asbestos-containing flooring materials. Conduct stripping of

finishes using wet methods and low abrasive pads at speeds lower than 300

revolutions per minute. Perform burnishing or dry buffing only on

asbestos-containing flooring that has sufficient finish so that the pad cannot contact

the asbestos-containing material.

Id. at 12 (Pg ID 399). Laboratory tests of floor tile samples that were taken from the school

indicated that several of the specimens contained between 3% and 10% asbestos. Further tests

indicated that dust collected from a pad attached to a floor buffer at the school also contained

detectable amounts of asbestos. 

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After the MIOSHA report and citations were issued, Ely continued to warn co-workers and

members of the public about asbestos exposure and health consequences. Ely contends that, as a

result of her continued warnings about the asbestos hazards in the District’s schools, she was

reprimanded a second time and again ordered to stop spreading “false rumors” by defendant Todd

Thieken, another superintendent of the school district. 

On September 3, 2014, Thieken sent a second letter of reprimand to the plaintiff referencing

“misconduct, false statements, absenteeism, creating an unfriendly work environment and

insubordination.” Thieken’s letter stated that he had investigated a number of complaints about the

plaintiff’s work and had determined that several violations of district policies and work rules had

occurred. In particular, the letter noted: (1) excessive absenteeism (36 out of 142 possible work days

from November 6, 2013 through July 10, 2014); (2) incidents when the plaintiff left work without

contacting her supervisor to let him know she was leaving; and (3) incidents when the plaintiff

provided notes from her doctor excusing her absence from work due to medical appointments, where

the doctor’s office indicated the plaintiff did not see the doctor on the days in question. The letter

reiterated almost verbatim the passages from the earlier letter of reprimand regarding “false rumors”

of asbestos hazards in the District’s schools. Thieken wrote:

You are again directed to cease notifying employees and other individuals that the

District maintains levels of asbestos that are not within state or federal regulations. 

You are also directed to cease spreading false rumors regarding the health and safety

of employees who work for the District.

Ex. 11, Letter of Reprimand dated Sept. 3, 2014, at 2-3 (Pg ID 425-26). Finally, the letter also noted

that discussions with co-workers had revealed that “it [was] clear that it is very hard for others to

work with” the plaintiff, and that her “attitude and dealings with other employees [were] unfriendly,

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unprofessional and [did] not represent any kind of willingness to get along with other staff

members.” Id. at 3 (Pg ID 426). Thieken concluded his letter by warning Ely that:

Your pattern of inappropriate behavior and absenteeism is inexcusable and cannot

be tolerated by the District. . . . Further, such conduct, absenteeism, continued

unwillingness to work with others, and insubordination will lead to further discipline

up to and including discharge.

Ibid. The September 2014 reprimand letter also indicates that a copy was placed into the plaintiff’s

personnel file.

Thieken’s letter directed the plaintiff to return to work on September 8, 2014, and to contact

her supervisor ahead of time to find out where she should report. It appears undisputed that the

plaintiff remains at work as a custodian for the District to this day.

On November 25, 2014, the plaintiff filed her complaint alleging violations of her First

Amendment rights via 42 U.S.C. § 1983. On June 30, 2015, with leave granted, she filed an

amended complaint that sets forth claims of First Amendment violations on theories of retaliation

(count I) and prior restraint (count II). Discovery closed on July 31, 2015, and the parties timely

filed their cross-motions for summary judgment. The Court heard oral argument on November 24,

2015.

II.

The fact that the parties have filed cross motions for summary judgment does not

automatically justify the conclusion that there are no facts in dispute. Parks v. LaFace Records, 329

F.3d 437, 444 (6th Cir. 2003) (“The fact that the parties have filed cross-motions for summary

judgment does not mean, of course, that summary judgment for one side or the other is necessarily

appropriate.”). Instead, the Court must apply the well-recognized summary judgment standards

when deciding such cross motions: the Court “must evaluate each motion on its own merits and view

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all facts and inferences in the light most favorable to the nonmoving party.” Westfield Ins. Co. v.

Tech Dry, Inc., 336 F.3d 503, 506 (6th Cir. 2003).

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). 

A trial is required when “there are any genuine factual issues that properly can be resolved only by

a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 

In a defensive motion for summary judgment, the party who bears the burden of proof must

present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th

Cir. 2000). Failure to prove an essential element of a claim renders all other facts immaterial for

summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895

(6th Cir. 1991).

When the moving party also bears the ultimate burden of persuasion, the movant’s affidavits

and other evidence not only must show the absence of a material fact issue, they also must carry that

burden. Vance v. Latimer, 648 F. Supp. 2d 914, 919 (E.D. Mich. 2009); see also Resolution Trust

Corp. v. Gill, 960 F.2d 336, 340 (3d Cir. 1992); Stat-Tech Liquidating Trust v. Fenster, 981 F. Supp.

1325, 1335 (D. Colo. 1997) (stating that where “the crucial issue is one on which the movant will

bear the ultimate burden of proof at trial, summary judgment can be entered only if the movant

submits evidentiary materials to establish all of the elements of the claim or defense”). The plaintiff

therefore “must sustain that burden as well as demonstrate the absence of a genuine dispute. Thus,

it must satisfy both the initial burden of production on the summary judgment motion — by showing

that no genuine dispute exists as to any material fact — and the ultimate burden of persuasion on

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the claim — by showing that it would be entitled to a directed verdict at trial.” William W.

Schwarzer, et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441,

477-78 (1992) (footnotes omitted).

A. First Amendment Retaliation

The defendants argue that the plaintiff has failed to sustain any viable First Amendment

claim because (1) under the rule of Garcetti v. Ceballos, 547 U.S. 410 (2006), she is not entitled to

First Amendment protection where she was merely “discussing school cleaning issues,” which are

matters within the scope of her job duties as a custodian; (2) the plaintiff cannot show that she

suffered any adverse action because, notwithstanding the issuance of two letters of reprimand, she

never actually was terminated or subjected to any other material change in her conditions of

employment; and (3) even if the reprimands qualify as “adverse actions,” under the balancing test

described in Pickering v. Board of Education, 391 U.S. 563 (1968), the school district’s interest in

squelching “false and dangerous rumors” about asbestos hazards at its schools — which the district

evidently maintains do not exist — outweighs the plaintiff’s interest in engaging in speech that was

merely intended to “stir up controversy.” For the same reasons, the district argues that there also

was no unlawful prior restraint of the plaintiff’s speech.

“To succeed on a First Amendment retaliation claim, the following elements must be proven:

‘(1) the plaintiff engaged in constitutionally protected conduct; (2) an adverse action was taken

against the plaintiff that would deter a person of ordinary firmness from continuing to engage in that

conduct; and (3) the adverse action was motivated at least in part by the plaintiff’s protected

conduct.’” Paterek v. Vill. of Armada, Michigan, 801 F.3d 630, 645 (6th Cir. 2015) (quoting Fritz

v. Charter Twp. of Comstock, 592 F.3d 718, 723 (6th Cir. 2010)). “It is well established that a

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government employer cannot ‘condition public employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expression.’” Perry v. McGinnis, 209 F.3d 597, 604

(6th Cir. 2000) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)). “As a logical consequence,

retaliation by a government employer against an individual who exercises his First Amendment

rights constitutes a First Amendment violation.” Ibid. (citing Zilich v. Longo, 34 F.3d 359, 365 (6th

Cir. 1994)). “This is the case even if the employee could have been terminated for any reason.” 

Ibid. (citing Rankin v. McPherson, 483 U.S. 378, 383 (1987)).

1. Protected Conduct

Protected conduct — the first element of the claim — is in turn determined by another threeelement test. “Under the test, commonly called the Pickering test, the plaintiff must [establish that]:

(1) the speech involved a matter of public concern, (2) the interest of the employee ‘as a citizen, in

commenting upon matters of public concern,’ outweighs the employer’s interest ‘in promoting the

efficiency of the public services it performs through its employees,’ and (3) the speech was a

substantial or motivating factor in the denial of the benefit that was sought.” Perry, 209 F.3d at 604

(quoting Pickering, 391 U.S. at 568).

The jury readily could conclude that the plaintiff was speaking as a citizen on a matter of

public concern. She testified that she told co-workers, her family, and other members of the

community that workers and students were exposed to asbestos-laden dust when she was compelled

improperly to sand floor tiles at one of the defendants’ schools. The jury reasonably could conclude

on the record before the Court that workers were not given any protective equipment and no effort

was made to contain the resulting toxic dust, or to prevent students from being exposed to it — in

fact the plaintiff testified that she saw students “writing messages” in the dust as she worked. The

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plaintiff’s statements to the public and the media plainly could be found to be communications that

publicized a dangerous health risk at the defendants’ schools that would be of grave concern to

students, their parents, and other employees of the school district. Galli v. Morelli, 277 F. Supp. 2d

844, 854 (S.D. Ohio 2003) (“[I]t is clear that Galli’s speech regarding the wall envelope, the

fireproofing, and the asbestos issue touch on matters of public concern in that they all involve

matters of public safety. Members of the community at large may enter Stillman Hall, and could

at any time be affected if the building was improperly constructed, or if asbestos was improperly

disposed of, as indicated in Galli’s speech.”).

The defendants contend that the plaintiff was not engaged in protected speech, but merely

sought to spread “false and dangerous rumors” for the purpose of “stirring up controversy.” But

even assuming that some aspects of the plaintiff’s statements were false or exaggerated, it is the

topic of the speech and not its veracity that determines whether it is entitled to First Amendment

protection. “Although First Amendment protection might not be available if the employer can show

that the public employee knowingly or recklessly made false statements, a public employee is not

required to prove the truth of his or her speech in order to secure the protections of the First

Amendment.” Farhat v. Jopke, 370 F.3d 580, 591 (6th Cir. 2004). The defendants have introduced

some evidence that the risk may have been less than at the time of the events that gave rise to the

plaintiff’s concerns — at least by mid-2013. But investigators of MIOSHA found circumstances

that they determined to be worthy of imposing citations, a significant fine, and remedial operational

restrictions on the defendants’ custodial departments at its schools that were found to have floor tiles

with significant asbestos content. That evidence certainly could support a jury’s conclusion that the

plaintiff had genuine — and factually substantiated — serious concerns. It also would suffice for

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a jury to conclude that the plaintiff acted prudently and commendably, and not at all recklessly, in

voicing her concerns to the community.

The defendants also argue that the plaintiff was not engaged in First Amendment protected

activity because the plaintiff was speaking solely as an employee and “pursuant to her official

duties” when she voiced her concerns. See Garcetti, 547 U.S. at 421 (“[W]hen public employees

make statements pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications from employer

discipline.”). But that argument ignores the Supreme Court’s subsequent narrowing of the holding

in Garcetti, refocusing the question on “whether the speech at issue is itself ordinarily within the

scope of an employee’s duties, not whether it merely concerns those duties.” Lane v. Franks, ---

U.S. ---, ---, 134 S. Ct. 2369, 2379 (2014). The Court explained that “the mere fact that a citizen’s

speech concerns information acquired by virtue of [her] public employment does not transform that

speech into employee — rather than citizen — speech.” Ibid. It is true that the plaintiff became

aware of the risks that she complained about in the course of her work. But those risks arose as a

result of improper floor sanding that generated hazardous asbestos-laden dust, which posed a danger

to workers, members of the public, and school children. The concerns that the plaintiff voiced

related to a serious public health risk, and the plaintiff’s speech was not, as the defendants would

have it, limited merely to “a janitor discussing her cleaning duties.”

In the jury were to conclude as much, the Court could find that the public interest in ensuring

that the plaintiff was able to voice her concerns outweighed any interest that the school district had

in suppressing her speech. “When an institution oversees some aspect of public safety, the correct

operation of that institution is a matter of public concern,” and “the interest in public safety

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outweighs the state’s interest in conducting its affairs collegially.” Hoover v. Radabaugh, 307 F.3d

460, 466 (6th Cir. 2002) (citations omitted); Chappel v. Montgomery Cty. Fire Prot. Dist. No. 1, 131

F.3d 564, 578 (6th Cir. 1997) (“Chappel directly addressed matters that are rightly near the zenith

of public concern — matters of public safety.” (quotations and alterations omitted)). It is for the

Court, not the jury, to strike the balance articulated by the Pickering court. Farhat, 370 F.3d at 593;

Meyers v. City of Cincinnati, 934 F.2d 726, 729, (6th Cir. 1991) (“The ultimate question of whether

speech is protected is a matter of law.”). “The jury may, however, resolve some underlying factual

questions, which can inform the legal determination of the Pickering balancing.” Pucci v.

Nineteenth Dist. Court, 596 F. App’x 460, 470 (6th Cir. 2015) (citing Donlin v. Watkins, 814 F.2d

273, 277 (6th Cir. 1987)). The ultimate resolution of that question must abide a trial. 

The defendants also contend that the plaintiff publicized her concerns merely to foreclose

the possibility that she might be laid off from her job as a result of financial circumstances in the

district. “The employee’s motive for engaging in the speech in question is a relevant, but not

dispositive, factor when considering whether an employee’s expression is of public concern.” 

Farhat, 370 F.3d at 590-91. The record contains sufficient evidence to support a conclusion that,

even if the plaintiff was in part motivated by personal interest, the balance of the Pickering factors

still weighs in favor of allowing rather than suppressing her speech about asbestos hazards in the

defendants’ schools.

2. Adverse Action

Typically, adverse action consists of termination from employment, but that did not happen

here. Instead, the plaintiff premises her retaliation claim on the issuance of two letters of reprimand

that were sent to her, and placed in her personnel file, which warned the plaintiff to stop spreading

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“false rumors” about the presence of asbestos in the defendants’ school buildings. “In order to

determine whether actions of lesser severity merit being deemed ‘adverse’ for purposes of a

retaliation claim, [the Sixth Circuit has adopted] the standard suggested by Judge Posner in Bart v.

Telford, 677 F.2d 622, 625 (7th Cir. 1982), that an adverse action is one that would ‘deter a person

of ordinary firmness’ from the exercise of the right at stake.” Thaddeus-X v. Blatter, 175 F.3d 378,

396 (6th Cir. 1999). “‘[S]ince there is no justification for harassing people for exercising their

constitutional rights [the effect on freedom of speech] need not be great in order to be actionable.’” 

Id. at 397 (quoting Bart, 677 F.2d at 625). The plaintiff “need not show [that she was] actually

deterred from exercising [her] right to free speech.” Ctr. for Bio-Ethical Reform, Inc. v. City of

Springboro, 477 F.3d 807, 822 (6th Cir. 2007). “[A] credible threat to the nature and existence of

one’s ongoing employment is of a similar character to the other recognized forms of adverse action

— termination, refusal to hire, etc.” Fritz v. Charter Twp., 592 F.3d 718, 724, 728 (6th Cir. 2010). 

“A chilling effect sufficient under this prong is not born of de minimis threats or inconsequential

actions, but neither does the requisite showing permit solely egregious retaliatory acts to proceed

past summary judgment.” Ctr. for Bio-Ethical Reform, 477 F.3d at 822.

A jury reasonably could conclude that the plaintiff was subjected to an adverse action in the

form of the second letter of reprimand warning her that she could be fired if she continued to engage

in the protected speech discussed above. That letter plainly stated that continuing to engage in the

“inappropriate” conduct described in the letter of reprimand could lead to further discipline

including discharge. That certainly suffices to support a jury’s finding that the second reprimand

letter was a “‘credible threat to the nature and existence of [the plaintiff’s] ongoing employment,’”

and such a threat is sufficient to prove an adverse action for the purposes of a First Amendment

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retaliation claim. Stolle v. Kent State Univ., 610 F. App’x 476, 483 (6th Cir. 2015) (quoting Fritz

v. Charter Twp., 592 F.3d 718, 724, 728 (6th Cir. 2010)).

3. Causation

“Causation is best addressed as a two part inquiry. First, we determine whether ‘the adverse

action was proximately caused by an individual defendant’s acts,’ and second, we consider whether

‘the individual taking those acts was motivated . . . by a desire to punish [the plaintiff] for the

exercise of a constitutional right.’” Paterek, 801 F.3d at 646 (quoting King v. Zamiara, 680 F.3d

686, 695 (6th Cir. 2012)). “The true object of this inquiry is to determine whether the plaintiff has

been retaliated against as a direct result of his or her protected speech.” Ibid.

If the other elements of the retaliation claim are satisfied, then a jury also could find that

causation is established, because it is undisputed that both of the reprimand letters issued to the

plaintiff explicitly ordered the plaintiff to cease the speech at issue, and the second letter stated that

the plaintiff could be fired if she did not. Where both reprimands plainly stated that they were issued

because of the plaintiff’s speech, there certainly is adequate evidence to support a finding that the

protected speech was the cause of the adverse action.

* * * * * * * * * * * * *

The plaintiff has offered sufficient evidence on her First Amendment retaliation claim to

withstand summary judgment.

B. Prior Restraint Claim

Where a public employee plaintiff “raise[s] a First Amendment prior-restraint claim, [the

Court must] apply the two-part Pickering analysis to determine whether [the employer’s] order was

an unconstitutional prior restraint of a public employee’s speech.” Whitney v. City of Milan, 677

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F.3d 292, 296 (6th Cir. 2012) (citing Pickering, 391 U.S. at 568; Farhat v. Jopke, 370 F.3d 580, 598

(6th Cir. 2004)). “First, [the Court must] determine whether the affected speech involved a public

employee’s comments as a private citizen on a matter of public concern. Second, if the speech

involves a matter of public concern, then [the Court] must balance the interests of the public

employee, ‘as a citizen, in commenting upon matters of public concern and the interest of the State,

as an employer, in promoting the efficiency of the public services it performs through its

employees.’” Ibid. (citing Connick v. Myers, 461 U.S. 138, 140 (1983)). “Speech touches upon a

matter of public concern ‘when it involves issues about which information is needed or appropriate

to enable the members of society to make informed decisions about the operation of their

government.’” Whitney, 677 F.3d at 297 (quoting Brandenburg v. Hous. Auth. of Irvine, 253 F.3d

891, 898 (6th Cir. 2001)).

“Although a government employer may take steps to ensure workplace harmony and need

not ‘allow events to unfold to the extent that the disruption of the office and the destruction of

working relationships is manifest before taking action, a stronger showing from the employer may

be necessary if the employee’s speech substantially involved matters of public concern.” Id. at 298

(quotations and alterations omitted); Leary v. Daeschner, 228 F.3d 729, 737-38 (6th Cir. 2000) (“[I]f

an employee’s speech substantially involved matters of public concern, an employer may be

required to make a particularly strong showing that the employee’s speech interfered with workplace

functioning before taking action.”). 

The prior restraint analysis is identical to the first two factors discussed above in relation to

the retaliation claim; essentially the prior restraint test is the Pickering analysis minus the causation

element. There is therefore sufficient evidence to support a finding in favor of the plaintiff on the

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prior restraint claim, which is the same evidence that supports the retaliation claim. For reasons

discussed above, the plaintiff has established her prior restraint claim with evidence that is sufficient

to overcome the defendants’ summary judgment motion. 

C. School District’s Liability

The school district argues that it should be dismissed as a party because the plaintiff has

failed to submit any evidence that any policy, custom, or practice of the district was the moving

force behind the alleged violations, as she must in order to sustain a claim against a municipal entity

under 42 U.S.C. § 1983. The Court agrees.

“To state a claim under § 1983, a plaintiff must set forth facts that, when favorably

construed, establish: (1) the deprivation of a right secured by the Constitution or laws of the United

States; (2) caused by a person acting under the color of state law.” Ibid. (citing Sigley v. City of

Parma Heights, 437 F.3d 527, 533 (6th Cir. 2006)). The plaintiff must establish the liability of each

individual defendant by that person’s own conduct. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

It is well settled that “respondeat superior is not available as a theory of recovery under

section 1983.” Doe v. Claiborne Cnty., 103 F.3d 495, 507 (6th Cir. 1996) (citing Monell v. Dep’t

of Soc. Servs., 436 U.S. 658, 691 (1978)); see also Vereecke v. Huron Valley Sch. Dist., 609 F.3d

392, 403 (6th Cir. 2010). “Section 1983 liability must be premised on more than mere respondeat

superior, the right to control one’s employees.” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009)

(citing Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999)).

“A municipality is liable for a constitutional violation when execution of the municipality’s

policy or custom inflicts the alleged injury.” Jones v. City of Cincinnati, 521 F.3d 555, 560 (6th Cir.

2008) (citing Monell, 436 U.S. at 694 (1978)). Moreover, “[t]he official policy or custom ‘must be

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the moving force of the constitutional violation’ to establish the liability of a government body.” 

Ibid. (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981)). “A plaintiff can make a showing

of an illegal policy or custom by demonstrating one of the following: (1) the existence of an illegal

official policy or legislative enactment; (2) that an official with final decision making authority

ratified illegal actions; (3) the existence of a policy of inadequate training or supervision; or (4) the

existence of a custom of tolerance or acquiescence of federal rights violations.” Burgess v. Fischer,

735 F.3d 462, 478 (6th Cir. 2013). The absence of a written policy endorsing the constitutional

violation is not fatal to a claim. “Section 1983 ‘authorizes suit “for constitutional deprivations

visited pursuant to governmental ‘custom’ even though such a custom has not received formal

approval through the body’s official decisionmaking channels.”’” Cash v. Hamilton Cnty. Dep’t of

Adult Probation, 388 F.3d 539, 542-43 (6th Cir. 2004) (quoting City of St. Louis v. Praprotnik, 485

U.S. 112, 121 (1988)). To sustain municipal liability under that theory, a plaintiff must “prove the

existence of a widespread practice that, although not authorized by written law or express municipal

policy, is so permanent and well settled as to constitute a custom or usage with the force of law.” 

Id. at 543 (citation and quotation marks omitted).

Although the plaintiff has submitted sufficient evidence to proceed on her claims against the

individual defendants, she has failed to put forth any evidence to suggest that any policy, custom,

or practice of the school district — formal or otherwise — was the moving force behind the alleged

violations of her rights. Based solely upon her strained reading of the District’s disciplinary

policies, the plaintiff contends that the superintendents that issued the reprimands to her were the

“ultimate authorities” in applying discipline short of suspension or loss of pay, because the policy

only explicitly requires those more severe sanctions to be presented to the school board for review. 

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But nothing in the language of the District’s policy prohibits review of less serious disciplinary

sanctions, and the presence of language requiring review of more serious actions does not compel

the inference that less serious ones could not also be reviewed. Moreover, the plaintiff has not put

forth any evidence that even suggests that the school district had a “policy, custom, or practice” of

sanctioning employees for reporting serious safety hazards at its schools, and allegations that two

school administrators applied a general disciplinary policy to that particular end in this case certainly

does not suffice to satisfy the plaintiff’s burden under Monell.

D. Qualified Immunity

Defendants Jeffrey Bartold and Todd Thieken argue that they are entitled to qualified

immunity because, at the time of the conduct in question, there was no clearly established law

holding that “a governmental supervisor could not manage or direct a subordinate employee’s

speech related to workplace matters; a custodian speaking about cleaning issues was actually a

‘citizen’ speaking about matters of public concern; a written reprimand could be considered an

‘adverse employment action’; or a school district’s interest in quelling false and dangerous rumors

does not outweigh a public employee’s desire to create discord.” These defendants, however,

misapprehend the qualified immunity defense as it has been described by the appellate courts.

“The doctrine of qualified immunity shields government officials performing discretionary

functions from civil liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.” 

Baynes v. Cleland, 799 F.3d 600, 609 (6th Cir. 2015) (citing Harlow v. Fitzgerald, 457 U.S. 800,

818 (1982); Phillips v. Roane Cnty., Tenn., 534 F.3d 531, 538-39 (6th Cir. 2008)). “To determine

whether a government official is entitled to qualified immunity, [the court must] make two inquiries:

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‘First, viewing the facts in the light most favorable to the plaintiff, has the plaintiff shown that a

constitutional violation has occurred? Second, was the right clearly established at the time of the

violation? These prongs need not be considered sequentially.’” Id. at 609-10 (quoting Miller v.

Sanilac Cnty., 606 F.3d 240, 247 (6th Cir. 2010)). “The plaintiff bears the burden to show that the

defendant is not entitled to qualified immunity.” Id. at 610 (citing Untalan v. City of Lorain, 430

F.3d 312, 314 (6th Cir. 2005)). “The issue of qualified immunity may be submitted to a jury only

if ‘the legal question of immunity is completely dependent upon which view of the [disputed] facts

is accepted by the jury.’” Ibid. (quoting Humphrey v. Mabry, 482 F.3d 840, 846 (6th Cir. 2007)).

“A right is ‘clearly established’ if ‘[t]he contours of the right [are] sufficiently clear that a

reasonable official would understand that what he is doing violates that right.’” Baynes, 799 F.3d

at 610 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “The relevant inquiry is

‘whether it would be clear to a reasonable [government official] that his conduct was unlawful in

the situation he confronted.’” Ibid. (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). “Although

the focus of the clearly established prong is whether the official had notice that his alleged conduct

was improper, . . . qualified immunity is an objective rather than a subjective inquiry.” Id. at 610-11

(citing Caudill v. Hollan, 431 F.3d 900, 911-12 (6th Cir. 2005); Cope v. Heltsley, 128 F.3d 452, 458

(6th Cir. 1997)). “In [Hope v. Pelzer, 536 U.S. 730 (2002)], the Supreme Court established that, for

purposes of qualified immunity, the precise factual scenario need not have been found

unconstitutional for it to be sufficiently clear to a reasonable official that his actions violate a

constitutional right — that is, for the right to be ‘clearly established.’” Id. at 611 (quoting Hope, 536

U.S. at 739, 741). “[G]overnment officials can still be on notice that their conduct violates

established law even in novel factual circumstances.” Ibid.

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The record before the Court establishes without question that the individual defendants twice

reprimanded the plaintiff and threatened to fire her, in direct response to her public speech warning

co-workers and the community about a serious health hazard at the defendants’ schools. Viewing

that record in the light most favorable to the plaintiff, see Alexander v. CareSource, 576 F.3d 551,

558 (6th Cir. 2009), would allow a jury to find all of the following facts. First, that the state’s own

occupational safety and health authority found the concerns that the plaintiff voiced sufficiently

serious to sanction the school district with citations for three “serious” violations, specific remedial

directives, and more than $13,000 in fines. Second, that no more than a week after MIOSHA

concluded its investigation based on the plaintiff’s complaint and issued its sanctions, the defendants

brazenly commanded the plaintiff to stop spreading “false rumors” about the risks from asbestos

contamination that the agency report had substantiated. Third, that the defendants, not satisfied with

merely “directing” the plaintiff to stop her protected speech, again reprimanded the plaintiff more

than a year later for voicing the same concerns, this time threatening to discharge her if she did not

keep quiet. Based on those findings, a jury readily could conclude that a reasonable official in the

defendants’ shoes would have known that what they did in May 2013 and September 2014

constituted blatant violations of the plaintiff’s First Amendment-protected right to voice her

concerns, by suppressing her efforts to warn the public and co-workers about a legitimate danger

in a public school. And the case law cited above established well before May 2013 that the plaintiff

had such a right, which any public official should have recognized.

In the qualified immunity context, as to whether a government employer’s prior restraint

violated a clearly established right, “‘the greater the speech’s relationship to a matter of public

concern and the more minimal the effect on office efficiency, the more likely a reasonable person

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would be to understand that the employer’s actions violated the Constitution.’” Whitney, 677 F.3d

at 299 (quoting Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 263 (6th Cir. 2006))

(alterations omitted). Here, the hazards that the plaintiff publicized included her own observations

of school children and workers being directly exposed to large amounts of asbestos-laden dust from

improper and unsafe floor sanding operations that the plaintiff was ordered to perform. That

certainly qualifies as a public safety concern of the highest order. And the defendants have not

offered any evidence even to suggest that the plaintiff’s communications materially disrupted the

efficient operation of the schools or the communal harmony of the custodial staff. The defendants

also have not pointed to anything beyond a single “testing report” of questionable origin and

veracity to substantiate their claims that the plaintiff was spreading “false and dangerous rumors”

about asbestos risks at their schools. The tenuous nature of the defendants’ proffered interests in

suppressing her speech, contrasted with the serious nature of the concerns she voiced, adequately

establishes that the defendants are not entitled to qualified immunity at the summary judgment stage.

E. Plaintiff’s Motion for Summary Judgment

As mentioned above, to prevail on an affirmative motion for summary judgment, the plaintiff

must demonstrate that there are no material fact questions on all the elements of her claims. Vance,

648 F. Supp. 2d at 919. She has not made a sufficient showing to prevail on that position. Although

the plaintiff’s evidence certainly is sufficient to sustain all of the elements of her claims, a jury

remains free to accept or reject that evidence, either in whole or in part. And the record is not so

decidedly one-sided on every element of the plaintiff’s claims as to compel the conclusion that no

jury reasonably could avoid finding in her favor. In particular, a jury reasonably could conclude that

there was no retaliation because the defendants never took any adverse action against the plaintiff.

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Although the second letter of reprimand plainly can be read as a “credible threat to the nature

and existence of [the plaintiff’s] ongoing employment,” it also could be reasonably and narrowly

read to threaten termination premised solely on the numerous other incidents of misconduct cited,

and not on the repetition of the protected speech about asbestos hazards. It is true that the letter

reiterates the directive for the plaintiff to stop her speech, but the final and most sharply worded

section warns the plaintiff that “such conduct, absenteeism, continued unwillingness to work with

others, and insubordination will lead to further discipline up to and including discharge.” That

boilerplate warning reasonably could be read as indicating only that discharge was a possible

sanction, not an imminent or probable one. And it also could be construed as referring only to

incidents of “conduct” such as insubordination and absenteeism.

The passage does not state explicitly that the plaintiff would or could be terminated for

continuing to spread “false rumors,” and in fact the letter does explicitly state that it was not

intended to “prohibit you from bringing to the attention [of school district officials] any unsafe

issues in the district.” The contemplated “conduct” that the letter refers to as possibly leading to

termination could be interpreted to include the plaintiff’s communications to co-workers and others

about asbestos hazards, but it also could be construed as embracing only her non-communicative

acts such as failing to show up for work. The fact that a plaintiff has engaged in protected speech

certainly does not foreclose a public employer from properly disciplining or even terminating an

employee for plain violations of work rules and policies, and the jury reasonably could conclude that

the gist of the second reprimand letter in this case was simply a legitimate warning that the

plaintiff’s poor work habits could lead to the end of her job. Rutan v. Republican Party of Illinois,

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497 U.S. 62, 76 (1990) (“The First Amendment is not a tenure provision, protecting public

employees from actual or constructive discharge.”).

As to the first letter, the jury readily could conclude that it invoked no adverse action at all,

because it never states — or even suggests — that any further action would be taken against the

plaintiff if she defied the directive to stop talking about asbestos hazards with co-workers and

members of the public. That letter states that the district regarded the plaintiff’s speech as violating

several policies, and it directed her to stop the speech, but it could be regarded as nothing more than

a strongly worded request for the plaintiff to stop her speech, that did not threaten any tangible

consequences for her employment if she chose to disregard it. The jury therefore readily could

conclude that nothing in the first letter comprises any sort of “credible threat” to the plaintiff’s

continued employment with the district, and the issuance of the letter did not amount to adverse

action.

As to the prior restraint claim, the jury reasonably could conclude that, in as much as both

of the letters of reprimand only directed the plaintiff to cease spreading “false rumors,” they did not

actually command the plaintiff to stop any legitimately protected speech in which she had engaged

or continued to engage.

The district presumably contends that, although there are some asbestos containing materials

in certain parts of the district’s school buildings, under normal circumstances those materials do not

pose any cognizable hazard to students and employees, and that any circumstances that might cause

those materials to become hazardous (e.g., the “sanding” of floor tiles) no longer was occurring —

if it ever did occur — when the plaintiff started talking to co-workers and the media about asbestos. 

The district contends that the letters of reprimand were intended merely to direct the plaintiff to stop

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making exaggerated and unsubstantiated statements that any present asbestos hazard existed in or

after May 2013 in the district’s schools that might represent an imminent threat to the health of

students or workers. And a jury might find that construction of the letters to be credible.

In fact, the MIOSHA investigation report noted that the alleged “sanding” of floor tiles had

been conducted months before the agency’s site visit, and, although citations with corrective

measures were issued, those reasonably could be construed as prophylactic only, designed to avoid

any possible future risk to students and employees at the schools, and to monitor for consequences

of any past risk that no longer was salient at the time of the report. There is no indication in the

report that any actual imminent risk to students or workers was observed at the time of the agency’s

site visits. If the jury concludes that the district’s only action was to warn the plaintiff to stop

making false statements that risks presently existed at the time of her speech, then it could find that

the defendants’ conduct was directed properly to squelching exaggerated accounts of an overstated

hazard.

Because fact questions remain, the plaintiff has not shown that she is entitled to a judgment

in her favor as a matter of law.

III.

The plaintiff has not offered evidence that establishes a claim against the municipal

defendant. However, she has offered sufficient evidence to create jury-submissible claims against

the individual defendants. And she has shown that those defendants violated her constitutional

rights that were clearly established at the time. The existence of fact questions preclude summary

judgment as a matter of law for the plaintiff and the individual defendants alike. 

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Accordingly, it is ORDERED that the defendants’ motion for summary judgment [dkt. #19]

is GRANTED IN PART AND DENIED IN PART.

It is further ORDERED that the amended complaint is DISMISSED WITH PREJUDICE

as to defendant Dearborn Heights School District Number 7, ONLY.

It is further ORDERED that the plaintiff’s motion for summary judgment [dkt. #20] is

DENIED.

s/David M. Lawson

DAVID M. LAWSON

United States District Judge

Dated: December 14, 2015

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on December 14, 2015.

s/Susan Pinkowwki 

SUSAN PINKOWKSI

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