1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DANIEL T. McCAW, 

 Plaintiff, Case No. 15-cv-12069 

 Hon. Matthew F. Leitman 

v. 

CHARTER TOWNSHIP 

OF WATERFORD et al., 

 Defendants. 

_________________________________/ 

OPINION AND ORDER (1) GRANTING DEFENDANTS’ MOTION FOR 

PARTIAL SUMMARY JUDGMENT (ECF #19) AND (2) DISMISSING 

STATE-LAW CLAIMS WITHOUT PREJUDICE 

 Plaintiff Daniel McCaw (“McCaw”) is the former Chief of Police for 

Defendant Charter Township of Waterford (“Waterford” or the “Township”). 

McCaw’s employment with the Township ended in March of 2015 when the 

Township’s Police and Fire Pension Board (the “Pension Board”) voted to retire 

him. McCaw now challenges his forced retirement under both federal and state 

law. In his federal claims, McCaw alleges that the Defendants (the Township and 

certain Township officials) terminated his employment without due process of law 

and in violation of his First Amendment rights. The Defendants have now moved 

for summary judgment on these claims (the “Motion”). (See ECF #19.) For the 

reasons explained below, the Court GRANTS the Motion. The Court further 

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declines to exercise jurisdiction over McCaw’s remaining state-law claims and 

DISMISSES those claims without prejudice. 

I 

A. Facts Relevant to the First Amendment Retaliation Claim1

From 2006-2014, McCaw served as Waterford’s Chief of Police. On the 

evening of July 19, 2014, McCaw was off duty when he noticed a series of 

campaign signs at an abandoned gas station located within the Township. (See 

McCaw Dep. at 413-14, ECF #23-2 at 416-17, Pg. ID 1876-77.) McCaw believed 

that the signs violated a local zoning ordinance, so he pulled into the gas station 

and began removing the signs. (See id.) 

 At about this same time, an on-duty Township police officer, Joseph 

Quaiatto (“Quaiatto”), drove by the gas station and observed an unidentified 

person removing the signs. Quaiatto activated his police lights, pulled into the 

parking lot, and realized that the person removing the signs was McCaw. (See id. at 

407-08, ECF #23-2 at 410-11, Pg. ID 1870-71.) Quaiatto then spoke briefly with 

McCaw and left the gas station. (See id.) 

 The in-car video system in Quaiatto’s squad car captured his interaction with 

McCaw. (See id. at 410, ECF #23-2 at 413, Pg. ID 1873.) After Quaiatto arrived 

                                                            

1

 As the Court must, it takes the evidence in the light most favorable to McCaw. 

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back at the police station, the video from his car was automatically uploaded to the 

police department’s secure video system. 

 On August 22, 2014, a Waterford resident filed a Freedom of Information 

Act request seeking a copy of the video from Quaiatto’s squad car (the “FOIA 

Request”). (See FOIA Request, ECF #19-21 at 2, Pg. ID 624.) After the FOIA 

Request was filed, Defendant Gary Wall (“Wall”), the Township Supervisor, asked 

the Township’s IT Director, Jared Black (“Black”), to retrieve a copy of the video. 

(See McCaw Aff., ECF #23-7 at ¶ 9, Pg. ID 2018-19.) Under Wall’s direction, 

Black then “ordered” another Township employee to “reveal the confidential 

[police department] administrative password” so that Black could access the video. 

(Id. at ¶ 11, Pg. ID 2019.) Black “eventually located the video and made a copy at 

[] Wall’s direction,” and “Wall then instructed [the employee] not to tell anybody 

that he had been ordered to provide his confidential [police department] 

administrative password and a copy of the video.” (Id. at ¶ 11, Pg. ID 2020.) 

 McCaw maintains that Wall should not have had access to the secure video 

system because access to that system is “limited to a very small group of police 

department employees with access to administrative usernames and a confidential 

. . . password.” (Id. at ¶ 7, Pg. ID 2018.) McCaw believed that Wall’s access of the 

video was a security “breach,” and he became “concerned about the possibility of 

other similar breaches.” (Id. at ¶ 23, Pg. ID 2025.) McCaw decided to “rectify the 

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situation” by distributing a “written directive” to his department. (Id. at ¶ 23, Pg. 

ID 2025.) 

On September 12, 2014, McCaw sent this “Directive for Computer Records 

& Password(s)” (the “Directive”) to all police personnel. (See ECF #19-25.) 

McCaw sent the Directive as an attachment to a cover e-mail which stated as 

follows: 

All Personnel, 

Please be aware of One or more of the Waterford Police 

Department’s computer, audio, video, digital, etc. 

programs/systems have been Compromised. You are 

Required to read the attached Directive and take 

Immediate Action. 

If you have any questions, contact your Supervisor 

Immediately. 

Daniel T. McCaw 

Chief of Police 

(Id. at 2, Pg. ID 639; emphasis and capitalization in original). 

 The Directive “order[ed] all department personnel to reset their confidential 

passwords and maintain confidentiality in the future.” (McCaw Aff. at ¶ 23, Pg. ID 

1298.) It further commanded each employee to send an e-mail “acknowledging” 

that the employee had “changed [his or her] password(s),” “read the [D]irective,” 

and “underst[oo]d th[e] [D]irective.” (Directive, ECF #19-25 at 3, Pg. ID 640.) In 

addition, the Directive “institut[ed] and identif[ed] standards for the security and 

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integrity of software, reports, data, files, passwords and authorized permissions.” 

(Id.) For example, the Directive prohibited employees from “us[ing] passwords, 

access[ing] a file, or retriev[ing] any stored communication unless authorized to do 

so by the Chief of Police or [his] designee.” (Id.) Finally, the Directive told 

recipients that if they violated its commands, they could face “disciplinary action 

up to and including termination and criminal prosecution.” (Id. at 5, Pg. ID 642.) 

 As described in more detail below, McCaw now claims that the Defendants 

unlawfully terminated his employment (in part) because he issued the Directive. 

B. Facts Relevant to the Due Process Claim 

The relationship between McCaw and the Defendants had been strained 

before the campaign-sign incident and the Directive, and those events caused it to 

deteriorate further. On September 25, 2014, Wall informed McCaw that he was 

“placing [McCaw] on Paid Administrative Leave pending an investigation by [the 

Township].” (ECF #19-31 at 2, Pg. ID 668.) In this notice, Wall informed McCaw 

that Waterford had hired outside counsel to investigate (1) McCaw’s removal of 

the campaign signs and (2) complaints received from police department unions 

about the Directive. (See id.) 

 On January 30, 2015, Wall notified McCaw in writing that the “investigation 

ha[d] revealed . . . evidence supporting charges that [he] engaged in actions or 

misconduct which may justify [his] termination as Police Chief in Waterford 

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Township.” (ECF #19-5 at 2, Pg. ID 287.) Wall told McCaw that his actions 

violated certain Township policies and implicated, among other things, a Michigan 

statute commonly known as “Act 78” (M.C.L. § 38.501 et seq.)

2

. As relevant here, 

Section 14 of Act 78 classifies certain police officers as civil servants and provides 

that “a member of any fire or police department encompassed by this act shall not 

be removed, discharged, reduced in rank or pay, suspended, or otherwise punished 

except for cause.” M.C.L. § 38.514(1). Wall told McCaw that the Township would 

provide McCaw “an opportunity to respond in writing and/or in person to the 

charges” before the Township decided whether to terminate his employment. (ECF 

#19-5 at 2, Pg. ID 287.) 

 McCaw chose to respond in person. On February 13, 2015, McCaw and his 

counsel met with Wall’s designee, Waterford’s Director of Human Resources Lou 

Feurino (“Feurino”), and a Township attorney. (See McCaw Dep. at 331, ECF 

#19-9 at 87, Pg. ID 514.) During this meeting, McCaw provided his side of the 

story and insisted that he did not behave improperly and should not be disciplined. 

(See id.) 

 Shortly after McCaw’s meeting with Feurino, the Township concluded its 

investigation. Wall determined, based on the findings of the investigation, that 

McCaw “violated [his] responsibilities as Chief [of Police] and engaged in a wide-

                                                            

2

 This statute is known as “Act 78” because it was originally enacted as 1935 

Public Act 78. 

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variety of actions which [were] inimical to being Chief in Waterford Township.” 

(ECF #19-7 at 3, Pg. ID 409.) Wall further concluded “that if [McCaw] were to 

resume active employment with the Township, termination would be required” 

under Act 78. (Id.) 

However, the Waterford Township Board of Trustees (the “Board of 

Trustees”) chose not to terminate McCaw for cause under Act 78. (See id. 5-6, Pg. 

ID 410-11.) Instead, on March 9, 2015, the Board of Trustees applied to the 

Pension Board to have that board end McCaw’s service under Michigan’s Fire 

Fighters and Police Officers Retirement Act, M.C.L. § 38.551 et seq., commonly 

known as “Act 345.”3

 The Board of Trustees believed that the Pension Board had 

the authority to terminate McCaw’s employment under Section 6 of Act 345 

because he was 60 years old. (See id.) That Section provides that: 

A member who is 60 years of age or older shall be retired 

by the retirement board upon the written application of 

the legislative body, or board or official provided in the 

charter of the municipality as head of the department in 

which the member is employed. Upon retirement, the 

retirement board shall grant the benefits to which the 

member is entitled under this act, unless the member 

continues employment. If the member continues 

employment, the member’s pension shall be deferred 

with service years of credit until actual retirement. 

M.C.L. § 38.556(1)(b). 

                                                            

3

 This statute is known as “Act 345” because it was originally enacted as 1937 

Public Act 345. 

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 The next day, on March 10, 2015, Wall sent McCaw a letter notifying 

McCaw that the Board of Trustees had sought his retirement under Act 345. (See 

ECF #19-7 at 4, Pg. ID 410.) Wall also told McCaw that “but for the action taken 

by the Township Board last night to request your retirement, I would [have been] 

left with no alternative but to terminate your employment immediately.” (Id. at 4-5, 

Pg. ID 410-11.) 

 McCaw says that he first learned through the media that the Board of 

Trustees requested his retirement, but he acknowledges that he received Wall’s 

March 10 letter within a “day or two.” (McCaw Dep. at 346-47, ECF #19-9 at 91, 

Pg. ID 518.) And by March 11, McCaw knew that the Pension Board had 

scheduled a meeting for March 17, 2015, to consider the Board of Trustees’ 

application to retire him and terminate his employment. (See id. at 208-09, ECF 

#19-9 at 55, Pg. ID 482.) 

 On March 12, 2015, McCaw sent an e-mail to members of the Pension 

Board concerning the application to retire him. (See ECF #23-20.) McCaw said 

that he understood that the Pension Board was scheduled to consider the 

application at its March 17 meeting, and he asked the Pension Board to postpone 

that meeting because he would be unable to attend in person. (Id. at 2-3, Pg. ID 

2116-17.) McCaw told the Pension Board that he would be in Florida visiting his 

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ill sister. (See id. at 3, Pg. ID 2117.) The Pension Board denied McCaw’s request 

to adjourn the meeting. 

 McCaw’s counsel then sent the Pension Board a letter in which McCaw 

formally objected to the Pension Board taking any action on the Board of Trustees’ 

application to retire him. (See ECF #23-19.) McCaw’s lawyer “urge[d] the 

Pension Board to reject the action that the Board of Trustees [] requested.” (Id. at 

3, Pg. ID 2114.) McCaw’s counsel explained in detail McCaw’s position that, as a 

matter of law, the Pension Board could not terminate McCaw’s employment with 

the Township. First, McCaw’s counsel argued that McCaw’s participation in the 

Township’s “Deferred Retirement Option Plan” (the “DROP”) prohibited the 

Township from “retiring” or terminating McCaw’s employment. (Id. at 2, Pg. ID 

2113.) Second, McCaw’s counsel argued that even if Act 345 authorized the 

Pension Board to “retire” McCaw, the Act did not authorize the board to terminate 

McCaw’s service as Chief of Police. (Id. at 3, Pg. ID 2114.) Counsel insisted that 

the term “retirement” as used in Act 345 does not mean a termination of 

“employment.” In relevant part, counsel argued: 

Although we presume that you are well aware of Chief 

McCaw’s status in the Waterford Township Police-Fire 

Act 345 Retirement System, we want to make sure 

everyone is on the same page. Chief McCaw is already 

in retirement status, having made an irrevocable election 

to Participate in the Waterford Township Police and Fire 

Retirement System Deferred Retirement Option Plan 

(“DROP”) on November 29, 2011. The Township 

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offered participation in the DROP plan to Chief McCaw 

and others by operation of an amended Township 

Ordinance. Your Board approved his participation in the 

DROP, with an effective date of January 1, 2012, 

continuing to January 1, 2017. We are placing you on 

notice that any change in Chief McCaw’s retirement 

status, during the five-year period for the DROP, will be 

considered a breach of contract unless the Chief elects to 

resign his position and terminate his employment earlier. 

 . . . . 

Retirement and employment are clearly separate issues. 

The distinction is readily apparent in Act 345 – including 

the section the Township Board and Supervisor have 

referred to in statements concerning their pending request 

to the Pension Board. That section [MCL 38.556(1)(b)] 

states that “Upon retirement the retirement board shall 

grant the benefits to which the member is entitled under 

this act, unless the member continues employment.” 

(emphasis added). We believe that the Board of Trustees 

and Township Supervisor are asking the Pension Board 

to take an action in a manner that would affect, or is 

intended to affect, Chief McCaw’s employment, and that 

the Township, its Board of Trustees, and Supervisor are 

prohibited from taking such action by Act 78 []. 

Furthermore, it is clearly Chief McCaw’s position that 

any action taken by the Township, its subunits, boards, 

Supervisor and/or employees, that affects his 

employment under current circumstances would be 

unlawful, improper, in excess of legal authority, contrary 

to proper and lawful procedure, without support, 

discriminatory, and retaliatory. 

(Id. at 2-3, Pg. ID 2113-14; emphasis in original.) 

 On March 17, 2015, the Pension Board met and considered both the Board 

of Trustees’ application to retire McCaw and the arguments presented by McCaw’s 

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counsel. (See ECF #23-21.) The Pension Board approved McCaw’s retirement, 

and it ended his employment with the Township as of March 9, 2015. (See id.) 

The minutes of the Pension Board’s meeting provide as follows: 

The Board received correspondence from the Waterford 

Township Supervisor . . . indicating that the Township 

Board of Trustees adopted a Mandatory Retirement 

Resolution on March 9, 2015 which serves as an 

application to retire Daniel T. McCaw under MCL 

38.556(b). The Board also received correspondence from 

Mr. McCaw’s attorney Lawrence B. Shulman . . . 

regarding Mr. McCaw’s retirement. 

The Board recognizes that MCL 38.556(b) provides in 

pertinent part, “A member who is 60 years of age or 

older shall be retired by the retirement board upon the 

written application of the legislative body . . . of the 

municipality . . . in which the member is employment,” 

and that Mr. McCaw has attained age 60. 

Wise moved to approve the retirement for Daniel T. 

McCaw . . . with the last day of employment being 

March 9, 2015, approved unanimously. 

Kazyak moved to receive and file the correspondence 

regarding Daniel T. McCaw . . . approved unanimously. 

(Id. at 3, Pg. ID 2120.) 

C. McCaw’s Claims 

On June 7, 2015, McCaw filed this action against the Township, Wall, and 

six other members of the Board of Trustees (Sue Camilleri, Margaret Birch, 

Anthony Bartolotta, Julie Brown, Karen Joliat, and Donna Kelly). (See Compl., 

ECF #1.) McCaw filed a First Amended Complaint on September 21, 2015. (See 

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First Am. Compl., ECF #12.) In the First Amended Complaint, McCaw asserts 

eight total claims: two federal claims under 42 U.S.C. § 1983 and six claims under 

state law. McCaw contends that this Court has federal question jurisdiction over 

this action under 28 U.S.C. § 1331 by virtue of his Section 1983 claims, and he 

asks the Court to exercise supplemental jurisdiction over his state law claims under 

28 U.S.C. § 1367(a). (See id. at ¶ 3, Pg. ID 139.) 

 McCaw’s first federal claim alleges that the Defendants violated his 

constitutional right to due process when they terminated his employment (the “Due 

Process Claim”). (See id. at ¶¶ 87-112, Pg. ID 163-68.) McCaw claims that he had 

a “constitutionally and statutorily protected property interest in [his] continued 

employment” and that the Defendants interfered with this interest “without 

[providing him] due process of law” and without following “proper termination 

procedure.” (Id. at ¶¶ 93, 103, Pg. ID 164, 166-67.) McCaw further appears to 

allege that the Defendants interfered with his “constitutionally protected liberty 

interest” by “terminating him without a name-clearing hearing or other notice of 

the grounds for termination and an opportunity to respond.” (Id. at ¶ 110, Pg. ID 

167.)4

                                                            

4

 In the Motion, Defendants sought summary judgment on McCaw’s claim that 

they deprived him of his “liberty interest” in his good reputation by failing to 

provide him a “name clearing” hearing. (See Mot. at 33-34, ECF #19 at 42-43, Pg. 

ID 268-69.) McCaw did not respond to that portion of the Motion in either his 

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 McCaw’s second federal claim alleges that the Defendants terminated his 

employment in retaliation for exercising his First Amendment rights (the “First 

Amendment Retaliation Claim”). (See id. at ¶¶ 114-22, Pg. ID 168-71.) In this 

claim, McCaw alleges, among other things, that he had a First Amendment right to 

issue and implement the Directive: 

[McCaw], as a civil service employee, enjoyed a 

constitutionally and statutorily protected interest in his 

First Amendment right to freedom of speech, including, 

but not limited to, implementation of departmental 

policies and procedures on the general conduct of his 

employees, and including reporting alleged specific 

violations thereof to other officials for proper vetting and 

investigation. 

(Id. at ¶ 118, Pg. ID 170.) 

                                                                                                                                                                                               

response to the Motion (see ECF #23) or his supplemental brief (see ECF #29). 

“Sixth Circuit jurisprudence is clear: a plaintiff is deemed to have abandoned a 

claim when [he] fails to address it in response to a motion for summary judgment.” 

Mathews v. Massage Green LLC, No. 14-cv-13040, 2016 WL 1242354, at *12 

(E.D. Mich. Mar. 30, 2016) (citing Brown v. VHS of Michigan, Inc., 545 Fed. 

App’x 368, 372 (6th Cir. 2013); Hicks v. Concorde Career Coll., 449 Fed. App’x 

484, 487 (6th Cir. 2011) (holding that a district court properly declines to consider 

the merits of a claim when a plaintiff fails to address it in a response to a motion 

for summary judgment); Clark v. City of Dublin, 178 Fed. App’x 522, 524-25 (6th 

Cir. 2006) (recognizing that the failure to respond properly to summary judgment 

arguments constitutes abandonment of a claim); Conner v. Hardee’s Food Sys., 65 

Fed. App’x 19, 24-25 (6th Cir. 2003)). Thus, the Court considers McCaw’s 

“liberty interest/name clearing” claim – which is a separate and distinct legal claim 

from his claim that a defendant interfered with a property interest in continued 

employment, see Ludwig v. Ferris State Univ., 123 F.3d 404, 408-11 (6th Cir. 

1997) – to be abandoned. 

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II 

On April 4, 2016, Defendants filed the Motion, seeking summary judgment 

on the First Amendment Retaliation Claim and the Due Process Claim. The Court 

held a hearing on the Motion on July 8, 2016. The parties thereafter submitted 

supplemental briefs to the Court. (See ECF ## 28, 29.) 

A movant is entitled to summary judgment when it “shows that there is no 

genuine dispute as to any material fact....” SEC v. Sierra Brokerage Servs., Inc., 

712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 251-52 (1986)) (quotations omitted). When reviewing the record, “the 

court must view the evidence in the light most favorable to the non-moving party 

and draw all reasonable inferences in its favor.” Id. “The mere existence of a 

scintilla of evidence in support of the [non-moving party’s] position will be 

insufficient; there must be evidence on which the jury could reasonably find for 

[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate 

when “the evidence presents a sufficient disagreement to require submission to a 

jury.” Id. at 251-52. Indeed, “[c]redibility determinations, the weighing of the 

evidence, and the drafting of legitimate inferences from the facts are jury 

functions, not those of a judge...” Id. at 255. 

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III 

To prevail on a First Amendment retaliation claim, a public employee must 

establish three elements. First, the employee must show that he engaged in 

constitutionally protected speech or conduct. See Benison v. Ross, 765 F.3d 649, 

658 (6th Cir. 2014). Second, the public employee must show that his employer 

took an adverse action against him “that would deter a person of ordinary firmness 

from continuing to engage in that lawful conduct.” Id. at 658. Third, the employee 

must demonstrate a causal connection between the constitutionally-protected 

speech or conduct and the employer’s adverse action – “that is, the adverse action 

was motivated at least in part by [the] protected conduct.” Id. The first element – 

whether McCaw engaged in protected speech – is at issue here. 

A public employee’s speech qualifies for First Amendment protection only 

if it satisfies each of the following three requirements: 

[1] The “matters of public concern” requirement. The 

First Amendment protects the speech of employees only 

when it involves “matters of public concern.” Connick v. 

Myers, 461 U.S. 138, 143 (1983). In Connick . . . the 

Court explained that not all employee speech is 

protected, only speech that “fairly [may be] considered as 

relating to” issues “of political, social, or other concern to 

the community.” Id. at 146. . . . When, by contrast, an 

employee’s speech does not relate to a matter of public 

concern, public officials enjoy “wide latitude” in 

responding to it without “intrusive oversight by the 

judiciary in the name of the First Amendment.” Id. 

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[2] The “balancing” requirement. If the employee 

establishes that her speech touches “matters of public 

concern,” a balancing test determines whether the 

employee or the employer wins. See Pickering [v. Board 

of Education], 391 U.S. [563,] 568 [(1968)]. . . . In 

resolving the claim, the Court “balance[d] . . . the 

interests of the teacher, as a citizen, in commenting on 

matters of public concern” against “the interest of the 

State, as an employer, in promoting the efficiency of the 

public services it performs through its employees.” [Id.] 

 . . . . 

 [3] The “pursuant to” requirement. In the last case in 

the trilogy, a prosecutor reviewed a private complaint 

that a police officer’s affidavit used to obtain a search 

warrant contained several misrepresentations. Garcetti [v. 

Ceballos ], 547 U.S. [410,] 413-14 [(2006)]. . . . In 

rejecting [the public employee’s] free-speech claim, the 

Court did not deny that the prosecutor’s speech related to 

a matter of “public concern” under Connick, and it did 

not take on the lower court’s reasoning 

that Pickering balancing favored the employee. It instead 

concluded that the First Amendment did not apply. “The 

controlling factor,” the Court reasoned, “is that his 

expressions were made pursuant to his duties as a 

calendar deputy,” making the relevant speaker the 

government entity, not the individual. Id. at 421 . . . . 

“We hold that when 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.” Id. 

. . . . 

A First Amendment claimant must satisfy each of these 

requirements: the Connick “matter of public concern” 

requirement, the Pickering “balancing” requirement and 

the Garcetti “pursuant to” requirement. 

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Evans-Marshall v. Bd of Educ. of Tipp Exempted Vill. Sch. Dist., 624 F.3d 332, 

337-38 (6th Cir. 2010). 

 Defendants are entitled to summary judgment on McCaw’s First 

Amendment Retaliation Claim because when McCaw issued the Directive, he was 

acting “pursuant to [his] official duties” and was “not speaking as [a] citizen[] for 

First Amendment purposes.” Id. (quoting Garcetti, 457 U.S. at 421). This is clear 

from the text of the Directive and McCaw’s cover e-mail. First, McCaw signed 

both documents as “Daniel T. McCaw Chief of Police.” (ECF #19-25 at 2-5, Pg. 

ID 639-42; emphasis added.) Second, the Directive and cover e-mail were 

addressed to all “personnel” of the police department – an audience that McCaw 

would address as part of his official duties. Third (and more importantly), the 

Directive gave specific orders to employees of the police department – something 

that McCaw could only do in accordance with his official duties and could not do 

in his capacity as a private citizen. Fourth (and equally important), the Directive 

threatened disciplinary action against any employees who violated its commands, 

and that, too, is something that McCaw could do only pursuant to his duties as 

Chief of Police. 

In addition, McCaw’s own sworn statements in this litigation underscore that 

he issued the Directive pursuant to his official duties. In his affidavit, McCaw 

acknowledged that he issued the Directive because he “not only had a duty but a 

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responsibility to secure WTPD systems and protect the citizens of Waterford from 

incurred liability and the general public from unsecured evidentiary data being 

accessed and shared by unauthorized individuals.” (McCaw Aff. at ¶ 28, ECF #23-

7 at 13-14, Pg. ID 2026-27; emphasis added.)5

 

                                                            

5 In another portion of his affidavit, McCaw says that he told members of certain 

Township police unions that the issue of unauthorized access to the department’s 

computer systems concerned him “as a tax paying citizen of Waterford,” (McCaw 

Aff. at ¶ 43, ECF #23-7 at 19-20, Pg. ID 2032-33), but this statement does not 

create a material factual dispute precluding summary judgment on the First 

Amendment Retaliation Claim. That claim is based on the Directive, not on 

conversations that McCaw may have had with union members. McCaw’s First 

Amended Complaint neither mentions any conversations with the union members 

nor alleges that the Township took any action against him based upon those 

conversations. (See ECF #12.) And McCaw’s briefing on the First Amendment 

issue likewise focuses on the Directive and does not attach any legal significance 

to his discussions with the union members. (See ECF ## 23, 29.) Because the First 

Amendment Retaliation Claim is not based upon McCaw’s discussions with the 

union members, it is immaterial whether McCaw told the union members that he 

had concerns as a “private citizen.” 

Moreover (and in any event), McCaw’s affidavit makes clear that he 

communicated with the union members pursuant to his official duties, not as a 

private citizen. McCaw explains that his communications with the union members 

occurred within the context of his “effort to address [the unions’] concerns” about 

the Directive and about “the possibility of discipline to their members” (McCaw 

Aff. at ¶ 42, ECF #23-7 at 19, Pg. ID 2032) – an “effort” that he necessarily 

undertook pursuant to his duties as Chief of Police and not as a private citizen. In 

fact, during the same conversation in which he mentioned his concerns as a private 

citizen, McCaw explained that “WTPD’s concern was to protect the public by 

securing WTPD systems by resetting the employee’s and system’s passwords,” and 

he told the union members that “if they had any suggestions to improve the 

directive and/or process for protecting WTPD passwords and systems, [he] would 

welcome their input.” (Id. at ¶ 43, ECF #23-7 at 19-20, Pg. ID 2032-33; emphasis 

added.) These statements underscore that McCaw was acting pursuant to his 

official duties when speaking with the union members. 

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19 

Simply put, McCaw issued the Directive pursuant to his official duties, and 

therefore it did not amount to protected speech. Accordingly, McCaw may not 

pursue a First Amendment retaliation claim based upon the Township’s alleged 

response to the Directive. See Weisbarth v. Geauga Park District, 499 F.3d 538, 

546 (6th Cir. 2007) (affirming dismissal of First Amendment retaliation claim 

where plaintiff spoke pursuant to job duties rather than “as a citizen”); see also 

Haynes v. City of Circleville, 474 F.3d 357, 364-65 (6th Cir. 2007) (reversing 

denial of summary judgment of First Amendment retaliation claim and holding that 

police officer’s statements in written memorandum were “unprotected as a matter 

of law” because officer was “acting as a public employee carrying out his 

professional responsibilities” when he drafted the memo). The Defendants are 

entitled to summary judgment on the First Amendment Retaliation claim. 

IV 

A 

 The Fourteenth Amendment prohibits “any state” from depriving “any 

person of life, liberty, or property without due process of law.” U.S. Const. amend. 

XIV, § 1. When assessing a claim by a plaintiff who seeks to invoke the 

“procedural protection” of this amendment, a federal court “addresses two 

questions.” Bazzetta v. McGinnis, 430 F.3d 795, 801 (6th Cir. 2005). The first 

question “asks whether there exists a liberty or property interest which has been 

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20 

interfered with by the State,” and “the second examines whether the procedures 

attendant upon that deprivation were constitutionally sufficient.” Kentucky Dep’t of 

Corr. v. Thompson, 490 U.S. 454, 460 (1989). 

 The Defendants contend that the Due Process Claim fails at “question one” 

because McCaw did not have a property interest in his continued employment at 

the time of his termination; McCaw strongly disagrees. However, the Court need 

not determine whether McCaw had a protectable property interest in his continued 

employment because, as explained below, even if he did have such an interest, his 

claim fails at “question two” because “the procedures attendant upon [the] 

deprivation [of that interest] were constitutionally sufficient.” Id. 

The “root requirement” of due process of law is “that an individual be given 

an opportunity for a hearing before he is deprived of any significant property 

interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original). 

“The predeprivation process need not always be elaborate, however; the amount of 

process required depends, in part, on the importance of the interests at stake.” 

Leary v. Daeschner, 228 F.3d 729, 742-43 (6th Cir. 2000). “Moreover, the 

sufficiency of predeprivation procedures must be considered in conjunction with 

the options for postdeprivation review; if elaborate procedures for postdeprivation 

review are in place, less elaborate predeprivation process may be required.” Id. 

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21 

In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the 

Supreme Court explained how these principles apply to the termination of a public 

employee who has a protected property interest in continued employment. The 

Supreme Court held that before a public employer may fire such an employee, the 

employer must provide notice and “some kind of hearing.” Id. at 542. The hearing 

need not be “elaborate,” but it must provide the employee with “[t]he opportunity 

to present reasons, either in person or in writing, why the proposed action should 

not be taken.” Id. at 546. The Supreme Court declined to require additional pretermination process where a public employee has an opportunity “for a full posttermination hearing.” Id. 

 Although Loudermill addressed the process due where a public employer 

seeks to discharge an employee for misfeasance, the Loudermill framework also 

applies where a public pension board seeks to “retire” a public employee for other 

reasons. Indeed, the United States Court of Appeals for the Sixth Circuit applied 

Loudermill in that precise context in Cremeans v. City of Roseville, 861 F.2d 878, 

882 (6th Cir. 1988). Cremeans provides important guidance concerning the 

process due to a civil servant with a property interest in continued employment 

who faces involuntary retirement proceedings before a pension board under Act 

345. 

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22 

 Jack Cremeans (“Cremeans”), the plaintiff in Cremeans, was a patrolman 

with the City of Roseville. He suffered “a knee injury when he slipped and fell in 

a non-work related incident.” Id. at 879. When he was unable to provide a doctor’s 

note stating that he was fit for duty, the chief of police “petitioned [Roseville’s] 

Retirement Board” to “retire[]” Cremeans and terminate his employment. Id. The 

chief filed the petition under Section 6 of Act 345 which provides that: 

upon the application of a member, or his department 

head, a member in service who has 5 or more years of 

service credit and who becomes totally and permanently 

incapacitated for duty by reason of a personal injury or 

disease occurring as the result of causes arising outside 

the course of his employment by the city, village, or 

municipality may be retired by the retirement board. 

M.C.L. § 38.556(2)(e). 

 The Roseville Retirement Board then held a hearing on the police chief’s 

application. At that meeting, Cremeans was given an opportunity to address the 

board, and he did so. See Cremeans, 861 F.2d at 879. At the conclusion of the 

hearing, the board voted to place Cremeans “on involuntary non-duty medical 

disability retirement.” Id. at 882. Cremeans had an opportunity to appeal the 

retirement board’s decision under Section 5 of Act 345, M.C.L. § 38.555, which 

authorizes review of such decisions “by writ of certiorari” (now called 

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23 

superintending control),6

 but he chose not to appeal. Id. at 881, n.4. Instead, he 

filed an action in federal court under 42 U.S.C. § 1983, in which he alleged that 

“the board members deprived him of his constitutional right to due process.” Id. at 

822. A jury found in Cremeans’ favor, but the Sixth Circuit reversed. 

 The Sixth Circuit applied the Loudermill framework and ruled that the 

retirement board afforded Cremeans all of the process that he was due under the 

Fourteenth Amendment. The court held that “the concerns expressed by the 

[Supreme] Court in Loudermill were met” because Cremeans “clearly had notice as 

to why he was being considered for medical retirement, clearly knew about the 

medical evidence the Board was relying upon, and was given the opportunity to 

present his side of the story.” Id. 

 As in Cremeans, the Loudermill concerns “were met” in this case. McCaw 

“clearly had [pre-hearing] notice as to why he was being considered for [] 

retirement.” Id. He has acknowledged that several days before the Pension 

Board’s hearing, he received Wall’s letter advising him that the Board of Trustees 

had sought his retirement under Act 345 based upon his age. (See McCaw Dep. at 

                                                            

6

 Section 5 of Act 345 provides that a retirement board created under the Act “shall 

be a quasi-judicial body, and its actions shall be reviewable by writ of certiorari 

only.” M.C.L. § 38.555. But Michigan courts no longer use writs of “certiorari” in 

this context. Instead, the Michigan Court Rules have “replace[d]” writs of 

certiorari with what are known as “writ[s] of superintending control.” See M.C.R. 

3.302(C) (“A superintending control order replaces the writs of certiorari and 

prohibition and the writ of mandamus when directed to a lower court or tribunal.”). 

See also In re Gosnell, 594 N.W. 2d 90, 98 (Mich. Ct. App. 1999). 

2:15-cv-12069-MFL-MJH Doc # 31 Filed 08/09/16 Pg 23 of 30 Pg ID 2276
24 

208-09, 346-47, ECF #19-9 at 55, 91, Pg. ID 482, 518.) In addition, both 

McCaw’s e-mail to the Pension Board asking the board to adjourn its consideration 

of his forced retirement and his lawyer’s pre-hearing letter to the Pension Board 

show that McCaw and his counsel knew that the Pension Board was considering 

whether to retire him under Act 345 based on his age. (See ECF ## 23-19, 23-20.) 

 Most importantly, McCaw had an “opportunity to present his side of the 

story” to the Pension Board. As noted above, his lawyer submitted a letter 

explaining in some detail – including legal citations – McCaw’s position that the 

Pension Board lacked the authority under Act 345 to terminate McCaw’s 

employment and that any termination would violate the terms of McCaw’s 

participation the DROP. (See ECF #23-20 at 2-3, Pg. ID 2113-14.) McCaw did 

not have a chance to address the Pension Board in person, but the Pension Board 

satisfied its Loudermill obligation by permitting McCaw to submit his position “in 

writing.” Loudermill, 470 U.S. at 546. 

 Moreover, McCaw had substantial post-termination process available to 

him. See Leary, 228 F.3d at 742-43 (explaining that the availability of postdeprivation procedures should be considered when assessing the sufficiency of predeprivation procedures and in the overall due process analysis). Like Cremeans, 

McCaw could have challenged the Pension Board’s decision under Section 5 of 

Act 345 (M.C.L. § 38.555). As noted above, that statute authorized McCaw to 

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25 

seek a writ of superintending control in a state circuit court to reverse the Pension 

Board’s decision. Seeking such a writ would have been proper because McCaw 

contended that the board made two legal errors – terminating his employment 

without the authority to do so and breaching the terms of the DROP (see ECF #23-

20 at 2-3, Pg. ID 2113-14) – and superintending control proceedings are used to 

address “questions of law” and to determine whether the decision-maker 

“exceeded [its] jurisdiction and proceeded according to law.” In re Gosnell, 594 

N.W.2d 90, 98 (Mich. Ct. App. 1999) (internal punctuation omitted). Indeed, 

superintending control proceedings under Section 5 of Act 345 “broadly” allow for 

review of “a retirement board’s ‘actions,’ not just its judicial or quasi-judicial 

decisions.” Bay City Police and Fire Retirees v. Bay City Police and Fire 

Retirement Sys. Bd., 2006 WL 2457485, at *2 (Mich. Ct. App. Aug. 24, 2006).7

 

And the Sixth Circuit in Cremeans highlighted that an involuntarily-retired police 

                                                            

7

 McCaw argues that under the governing Michigan Court Rule, M.C.R. 3.302, he 

could not have obtained a writ of superintending control. The rule provides that 

“[i]f another adequate remedy is available to the party seeking the order, a 

complaint for superintending control may not be filed.” M.C.R. 3.302(B). McCaw 

says that his ability to file this civil action in this Court was an “adequate remedy” 

that would have barred him from seeking superintending control. He cites no 

authority for this proposition. (See McCaw Supp. Br. at 5, ECF #29 at 12, Pg. ID 

2213.) And the Sixth Circuit has squarely rejected an argument just like this as 

“thoroughly unpersuasive” and “circular at best.” Collyer v. Darling, 98 F.3d 211, 

227 (6th Cir. 1996) (rejecting the argument that a due process plaintiff could not 

have obtained mandamus relief in state court – which was unavailable to a plaintiff 

with an adequate remedy at law – because he could have filed a § 1983 action). 

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officer may challenge the lawfulness of a retirement board’s decision to retire him 

by seeking review under Section 5 of Act 345. See Cremeans, 861 F.2d at 882. 

Thus, McCaw is incorrect when he contends that he “was flat out denied any 

posttermination hearing.” (McCaw’s Resp. Br. at 33, ECF #23 at 46, Pg. ID 1450.) 

In sum, McCaw had a meaningful opportunity to oppose the Pension 

Board’s decision to terminate his employment before it occurred and a serious 

opportunity for post-termination review of that decision. Thus, as in Cremeans, 

McCaw did not suffer a deprivation of property without due process of law. See 

also Dziuban v. Bd. of Trustees City of Saginaw Police Officers and Firefighters 

Retirement Sys., 07-12902, 2008 WL 183556, at *10 (E.D. Mich. Jan. 18, 2008) 

(holding that plaintiff failed to state a procedural due process claim where she had 

an opportunity to present her position to pension board and where she could have 

sought review of the board’s decision under Section 5 of Act 345). 

B 

McCaw’s argument that he was denied due process focuses largely on the 

investigation into his alleged misconduct and the related disciplinary proceedings 

against him. He complains that Wall and Board of Trustees “fail[ed] to adhere to 

[the procedural requirements for disciplinary investigations and terminations set 

forth in] Act 78 in numerous ways.” (McCaw’s Resp. Br. at 22, ECF #23 at 35, Pg. 

2:15-cv-12069-MFL-MJH Doc # 31 Filed 08/09/16 Pg 26 of 30 Pg ID 2279
27 

ID 1439.) He summarizes the “numerous” procedural flaws in the disciplinary 

proceedings as follows: 

Chief McCaw was denied any meaningful pretermination 

process. First, there was no “termination” through Act 

78. The charges detailed in the January 30, 2015 letter 

were void under Act 78 and therefore Act 78 was not 

invoked. Further, Defendants never transmitted the 

charges to the Civil Service Commission to start the 

process required by Act 78. The only process afforded to 

Chief McCaw was the offer to allow Chief McCaw to 

meet with Defendant Wall or his designee to “respond in 

writing and/or in person to the charges and receive a 

review of the charge before me as the Appointing 

Authority or my designee” (Ex. 13; Ex. l at 331-350) 

This suggested meeting does not come close to 

comporting with the public hearing provisions of Act 78. 

The meeting described in Defendant Wall's January 30, 

2015 letter was outside of the procedures set forth in Act 

78 in that no decision had yet been made against Chief 

McCaw to remove, discharge, demote or otherwise 

impose a disciplinary sanction. Act 78 procedures 

provide protection once such a decision has been made 

and action has been taken, in which case the employee 

has a right to answer the charges and demand a public 

hearing before the Civil Service Commission, and to 

appeal an adverse decision of the Civil Service 

Commission to the Circuit Court. (Ex. I at 345-346, 370-

381) As evidenced by the January 30, 2014 letter, the 

inappropriately labeled a Loudermill hearing was 

explicitly an opportunity to address the charges in a 

private forum rather than public and with Defendant 

Township’s Director of Human Resources and not the 

Civil Service Commission. 

(Id. at 30-31, ECF #23 at 43-44, Pg. ID 1447-48.) 

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28 

There are three flaws in this line of argument. First, McCaw’s focus on the 

actions taken in connection with the disciplinary proceedings under Act 78 is 

misplaced. He was not terminated under Act 78 based upon the results of a 

disciplinary investigation or for any alleged misconduct; the disciplinary 

proceedings against McCaw ended without any final decision. Instead, McCaw 

was involuntarily retired based upon his age under Act 345, a wholly separate 

statute with its own procedures and requirements. Thus, even if the disciplinary 

proceedings were flawed, the alleged flaws in that process did not result in a 

deprivation of McCaw’s property interest in continued employment. 

Second, McCaw’s focus on allegedly unfair practices by Wall and the Board 

of Trustees is misplaced. The Pension Board, not Wall and the Trustees, made the 

final decision to end McCaw’s employment. Thus, it is the actions of that board 

that deprived McCaw of his claimed property interest in continued employment 

and that are most relevant to the Due Process Claim.8

                                                            

8

 McCaw also notes that he did not have advance notice that the Board of Trustees 

was going to consider applying to the Pension Board to have him retired and/or 

was going to vote on whether to make that application. But, as described above, 

the Board of Trustees’ decision to request that the Pension Board retire McCaw did 

not deprive McCaw of a property interest. Instead, it was the vote of the Pension 

Board that terminated McCaw’s employment, and it is undisputed that McCaw had 

advanced knowledge of that hearing and the opportunity to address the Pension 

Board before it made that decision. 

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29 

Finally (and most importantly), McCaw’s focus on the Defendants’ alleged 

failures to comply with the procedural requirements of state law is misplaced. In 

the context of a due process claim like McCaw’s, a federal court is “not concerned 

with determining whether the procedure involved strictly complied with state law.” 

Cremeans, 861 F.2d at 882. The question, instead, is whether the plaintiff 

“received constitutionally adequate process when he was placed on involuntary ... 

retirement.” Id. As explained above, McCaw did receive such process, and thus 

his due process claim fails even if certain steps taken by the Defendants did not 

strictly comply with state law. 

McCaw has raised a number of serious questions as to whether the 

Defendants violated his rights under Act 78 and/or whether the Pension Board 

exceeded its authority under Act 345 when it terminated his employment. Those 

questions – on which this Court expresses no opinion – deserve careful 

consideration by a state court. But the alleged failures to comply with state law do 

not equate to a violation of the Due Process Clause. 

V 

 Under 28 U.S.C. § 1367(c)(3), a district court “may decline to exercise 

supplemental jurisdiction” over a state law claim where the court “has dismissed 

all claims over which it has original jurisdiction.” And when “all federal claims 

are dismissed before trial, the balance of considerations usually will point to 

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30 

dismissing the state law claims, or remanding them to state court if the action was 

removed.” Gamel v. City of Cincinnati, 625 F.3d 949, 952 (6th Cir. 2010). That is 

the case here. McCaw has not offered any persuasive arguments as to why his 

state-law claims should remain in this Court. And the Court believes that the 

Michigan state courts are best suited to resolve the challenging questions of state 

law – under Act 78 and Act 345 – raised by McCaw’s claims. Accordingly, the 

Court dismisses McCaw’s remaining state law claims without prejudice. 

VI 

For the reasons stated above, IT IS HEREBY ORDERED that the Motion 

(ECF #19) is GRANTED as follows: 

 Defendants are GRANTED summary judgment with respect to Counts I and 

II of McCaw’s First Amended Complaint; and 

 The remaining counts of the First Amended Complaint are DISMISSED 

WITHOUT PREJUDICE.

       s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: August 9, 2016 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on August 9, 2016, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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