UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

RON KLOSOWSKI, 

 Plaintiff, Case No. 15-10636 

v Honorable Thomas L. Ludington 

JOE LEDESMA, et al., 

 

 Defendants. 

__________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT 

 Plaintiff Ronald Klosowski performed bridge tending services for Defendant Bay City 

from 2007 to 2012 through numerous employment agencies of which he was an employee. Mot. 

for Summ. J. Ex. K 36-37, ECF No. 10 (“Klosowski Dep.”). After disagreeing with his 

supervisor, Defendant Joe Ledesma, about the bridge tenders’ 2012 winter schedule, Klosowski 

wrote an email to the Bay City mayor on November 14, 2012. In his email, Klosowski expressed 

concern with “unnecessary money” being expended by the City to staff the bridges during the 

month of December. One week later, on November 21, 2012, Defendant Ledesma contacted 

Klosowski’s employment agency to advise that Bay City was not selecting Klosowski to return 

as a bridge tender for the 2013 year. 

 Klosowski responded by filing suit in Bay County Circuit Court on September 10, 2013. 

Defendants then removed the action to this Court on February 19, 2015. ECF No. 1. After 

completing discovery, on November 24, 2015 Defendants filed a motion for summary judgment 

as to all of Plaintiff’s claims. ECF No. 10. For the reasons discussed below, that motion will be 

granted in part and denied in part. 

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I. 

 Plaintiff Klosowski was hired by a staffing agency called SelectStaffing in 2007. See 

Klosowski Dep. 36-37. His first and only assignment from SelectStaffing was to perform bridge 

tending services for Defendant Bay City. Id. at 38-41. Over the next five years, Bay City went 

through “six or seven different staffing companies”. Id. at 31. When the staffing company 

changed, the bridge tenders simply signed contracts with the new staffing agency and continued 

to provide bridge tending services for the City. Id. 

A. 

 At the time of the events in question, in late 2012, Klosowski was employed by a staffing 

company called ITH Staffing (“ITH”). Id. at 30. Klosowski acknowledged receiving ITH’s 

handbook on July 28, 2011. Mot. for Summ. J. Ex. C. Through signing the acknowledgment, 

Klosowski recognized that his employment with ITH was at-will and could be terminated at any 

time, with or without notice. Id. Plaintiff Klosowski also signed a copy of ITH’s policies and 

procedures, acknowledging: 

I understand that I am an employee of this staffing company and only I or this 

staffing company can terminate my employment. When an assignment ends, I 

must report to staffing company office for my next job assignment. Failure to do 

so or accept my next job assignment will indicate that I have voluntarily quit and 

will not be eligible for unemployment benefits. 

Mot. for Summ. J. Ex. B. Susan Schalk, the ITH employee in charge of handling benefits and 

workers’ compensation, states in her affidavit that Bay City contracted with ITH for temporary, 

seasonal bridge tenders. Mot. for Summ. J. Ex. B. 

 Once ITH took over as Klosowski’s employer, it became responsible for paying wages, 

workers compensation insurance, and other employee benefits. Id. ITH also managed employee 

sick time and leave pursuant to the Family and Medical Leave Act. Id. While ITH controlled the 

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ministerial functions of Klosowski’s employment, his day-to-day activities and responsibilities 

were controlled by Defendant Bay City, through Defendant Ledesma. Ledesma set the bridge 

tenders’ schedules, hours, and assignments, was responsible for supervising, disciplining, and 

evaluating bridge tenders, and was ultimately responsible for requesting or rejecting bridge 

tending personnel at the end of each season. Resp. to Summ. J. Ex. 4A 8-13, ECF No. 14 

(“Ledesma Dep.”). 

 Over his five years serving as a bridge tender, Plaintiff Klosowski had some minor 

personality conflicts with fellow bridge tenders. Klosowski did not get along with fellow bridge 

tender Tim Holt, who often smoked in the small control room and did not clean up his ashtrays, 

upsetting Klosowski’s asthma. Klosowski Dep. at 80-81. Klosowski also complained that Mr. 

Holt often parked in a no-parking zone, and that Mr. Holt damaged the control room when he 

eventually left. Id. at 198-99. Klosowski also did not always get along with Tom Fick, who did 

not compensate Klosowski for a television, cable, and kitchen items that Klosowski decided to 

purchase for the bridge tenders use, as Fick claimed that he did not use those items. Klosowski 

Dep. at 82-83. Ledesma and Klosowski also had some personal issues, since Klosowski thought 

he was improperly trained and unable to fix anything on the bridge. Id. at 210-211. 

Ledesma was also occasionally concerned with Klosowski’s interactions with the public. 

On one occasion when a freighter was approaching the bridge cars continued to drive on the 

bridge despite the fact that they had a red light. Id. at 217. Klosowski began slowly, manually 

bringing the gate down in an attempt to stop the car. Id. at 218. Ledesma felt that this action 

presented a safety issue for the public, while Klosowski believed that the greater safety issue was 

the potential that the freighter could hit the bridge before it was open. Id. In a September 7, 2011 

merit evaluation, Ledesma gave Klosowski generally high scores, but noted that although 

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Klosowski took his job seriously, he “needs to be understanding with employees and public.” 

Resp. to Summ. J. Ex. 8. Then in a December 16, 2011 merit evaluation, Ledesma noted that he 

and Klosowski had had some issues in June, but that they had been resolved, and that “Ron is 

clearly one of our best employees.” Resp. to Summ. J. Ex. 9.

 On August 9, 2012 and again on September 27, 2012, just prior to the incidents 

underlying this case, Ledesma gave Klosowski scores of 100 percent in his merit evaluations. 

Resp. to Summ. J. Ex. 6-7. Notably, those reviews included 100 percent scores in the categories 

of “Personality” and “Cooperation/Teamwork.” 

B.

 While in previous years bridges were unmanned from December 15 to March 15, in 2012 

the United States Army Corp of Engineers amended the bridge schedule. Under the new 

schedule, bridges were to be manned beginning on March 1 and ending on December 31. Upon 

learning of the new bridge schedule, Klosowski complained to Ledesma that paying bridge 

tenders to do nothing except “watch[ ] the water freeze” in December was a waste of the City’s 

money. Resp. to Summ. J. Ex. A, Klosowski Affidavit. Klosowski also stated that staffing the 

bridges during that time was costing Bay City in excess of $25,000 per year. Id. According to 

Klosowski, Ledesma “just said no.” Id. Defendants claim that Klosowski was not actually 

concerned with City expenses, but instead did not like working in the cold, did not like shoveling 

snow, and wanted to vacation in December. 

 At the time in question Ledesma’s supervisor, Tony Rytlewski, had just retired, so 

Klosowski was unable to address his concerns to him. See Klosowski Dep. 262. Klosowski also 

chose not to take his concerns to the City Manager. Id. Instead, Klosowski called the mayor to 

discuss the bridge schedule. Id. at 263. The mayor asked Klosowski to send him an email 

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discussing his concerns. Accordingly, on November 13, 2012 Klosowski sent the mayor the 

following email: 

Hi Mr. Shannon, this is Ron with the concern about the unnecessary money being 

spent for the month of December. Four people on each bridge at $480.00 per 

person that’s $15,360.00 minimum, also holiday money just to watch water 

freeze. Plus all the heat and lights you have to have on. I have been there going 

on my 5th year, and if we had two openings total you would be lucky. Last year 

we had one freighter on dec. 2nd, that was it, they get stuck out in the bay. I love 

my job and I don’t want this to affect it, but it don’t make any sense at all, when 

the City is trying to save money. On days, Joe L and Jim can open it if need be, 

just get with Coast Guard and have the ship give a 12 hour notice, like they did in 

past years, and if need be, call one of us in, with the 12 hour notice we could 

come in, on call. I don’t know for the life of me why they would change it. It 

used to be march 15th to dec. 15th and that was to long. We don’t have openings 

until around the 10th of april, and all pleasure craft are done by say late oct, early 

nov. I like money like anyone else, but Chris I like to earn in. This is wasting our 

money, and I don’t like wasting money, yours or mine 

Thanks Ron Klosowski... If you got time please let me know what you think 

Mot for Summ J. Ex. K (sics in original). The mayor forwarded Klosowski’s email to Robert 

Bellman, the City Manager that same day, who in turn emailed David Harran, Mr. Rytlewski’s 

replacement as Bay City’s public work’s director. Resp. to Summ. J. Ex. 13 at 4, 12. Mr. 

Bellman asked Mr. Harran “could the City achieve these savings if recommendations are 

implemented?” Resp. to Summ. J. Ex. 12. 

The day after Klosowski sent his email to the mayor, November 14, 2012, Ledesma and 

Mr. Harran visited Klosowski on the bridge. According to Plaintiff, Mr. Harran informed 

Klosowski that he had good ideas but that it was too late for any changes that year. Mr. Harran 

also allegedly informed Klosowski that he did not have a problem with the fact that Klosowski 

went to the mayor, but that Ledesma did. 

Some who worked with Klosowski on the bridges also had a problem with Klosowski’s 

email to the mayor. Numerous fellow bridge tenders became upset that Klosowski was 

apparently speaking on their behalf. Mot. for Summ. J. Ex. H. They also expressed concern that 

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their hours would be reduced and they would potentially have to seek additional employment. Id. 

Some even discussed circulating a petition to remove Klosowoski from his bridge tender 

position. Id. 

On November 20, 2012 Mr. Harran answered Mr. Bellman’s email, explaining that Bay 

City was required to follow the schedule as specified in the Federal Register, Rules and 

Regulations, and that the City would be subject to fines and penalties if it was unresponsive to 

any bridge opening request. Resp. to Summ. J. Ex. 15. Mr. Harran further informed Mr. Bellman 

that he had informed Klosowski of these facts the day before. Id. 

On November 21, 2012, one week after Klosowski emailed the mayor, Ledesma 

contacted ITH to advise that Klosowski was not being asked back for the 2013 year. In a report 

of the call, Carla Sowel stated that Ledesma did not want Klosowski to return for the next season 

because Klosowski had contacted the mayor regarding the bridge schedule, which Klosowski 

was only interested in because he did not like working in December. Mot. for Summ. J. Ex. M. 

ITH was informed that Ledesma and Mr. Harran had a “fire to put out” because the bridge 

schedule is ruled by the Coast Guard and the city “could lose control of the bridge” and that 

“they are so upset with him for doing this because all he had to do was ask his supervisors about 

why they run the bridges in December.” Id. The report also noted that the Mayor was looking 

into whether the State could take control of the bridges. Id. 

Meanwhile, Mr. Harran sent a second email to Mr. Bellman on December 1, 2012, noting 

that the City could save up to $25,000, but could be subject to $25,000 in fines from the Coast 

Guard. Resp. to Summ. J. Ex. 16. Mr. Harran further noted that he agreed with Mr. Bellman that 

they should bring the topic of discussion to the forefront, and that they could consider closing the 

bridges for the months of November and April as well. Id. 

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C. 

Klosowski was apparently not notified that he would not be asked to return for the 2013 

season. Instead, in a December 12, 2012 job assignment memorandum, Ledesma stated that all 

bridge operators, including Klosowski, would be off until April 1, 2013. See Resp. to Summ. J. 

Ex. 23. The memorandum further stated that “[a] Bridge Department staff meeting is scheduled 

for March 25, 2013 at 8:00 a.m. at the City Service Building (lunch room). All Bridge Personnel 

are required to attend.” 

On March 13, 2013 Ms. Sowel documented that she had left a voicemail message for 

Klosowski to call ITH. Mot. for Summ. J. Ex. M. Klosowski apparently did not return the call, 

and, pursuant to the December 12, 2012 memorandum, Klosowski reported to the meeting on 

March 25, 2013. Ledesma then asked Klosowski if he could speak with him outside, and 

informed Klosowski that he no longer had a job. Klosowski Dep. 294. Klosowski stated that he 

wanted to talk to Mr. Harran, which Ledesma told him he could not do. Id. at 295. Nonetheless, 

Klosowski went to talk to Mr. Harran, who told Klosowski that he would check into and get back 

to him. Id. Later that day, Ledesma called Klosowski to inform him that he was no longer a 

bridge operator because he could not get along with other bridge tenders. Id. at 298. ITH did not 

inform Klosowski that he did not have a job until that same day, March 25, 2013. Mot. for 

Summ. J. Ex. M. Ms. Sowel informed Klosowski that he was not being asked back because 

there had been a cut back in hours and Bay City requested people who would be willing to work 

fewer hours. Id. 

Following the end of his bridge tending services to Bay City, Klosowski did not report to 

ITH for another assignment. Klosowski Dep. 184-190; Mot. for Summ. J. Ex O. At the time of 

his deposition on June 30, 2014 Klosowski was looking for work, but was not using any 

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employment agencies to assist him in his search, claiming that he no longer trusted them. Id. at 

126. 

D.

Klosowski filed suit against Defendants in Bay County Circuit Court on September 10, 

2013, alleging three counts: (1) tortious interference with an advantageous business relationship; 

(2) tortious interference with a contractual relationship; and (3) violation of Michigan public 

policy and the Michigan Constitution’s guarantees of freedom of speech. ECF No. 1. Ex. B. 

Klosowski then filed an amended complaint on February 16, 2015, adding a claim that 

Defendants violated his right to freedom of speech under 42 U.S.C. § 1983. Defendants 

consequently removed the action to this Court on February 19, 2015. 

II.

Defendants now move for summary judgment on all of Klosowski’s claims. A motion for 

summary judgment should be granted 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). The moving party has the initial burden of identifying where to look in the record for 

evidence “which it believes demonstrate the absence of a genuine issue of material fact.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party 

who must set out specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 250 (1986) (citation omitted). 

The Court must view the evidence and draw all reasonable inferences in favor of the nonmovant and determine “whether the evidence presents a sufficient disagreement to require 

submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” 

Id. at 251-52. The party opposing summary judgment “must do more than simply show that there 

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is some metaphysical doubt as to the material facts.... Where the record taken as a whole could 

not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for 

trial.” Scott v. Harris, 550 U.S. 372, 380 (2007). 

A. 

Klosowski’s federal claim under 42 U.S.C. § 1983 will be addressed first. Section 1983 

provides in relevant part: 

“Every person who, under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory or the District of Columbia, subjects, or causes to 

be subjected, any citizen of the United States or other person within the 

jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

secured by the Constitution and laws, shall be liable to the party injured in an 

action at law, suit in equity, or other proper proceeding for redress.” 

Id. In the fourth count of his amended complaint, Klosowski alleges that Defendants violated § 

1983 by retaliating against him for exercising his right to freedom of speech and expression as 

protected by the First Amendment of the United States Constitution. Compl. ¶¶ 74-75. 

To establish a claim under § 1983 a “plaintiff must establish both that 1) []he was 

deprived of a right secured by the Constitution or laws of the United States and 2) the 

deprivation was caused by a person acting under color of state law.” Redding v. St. Eward, 

241 F.3d 530, 532 (6th Cir. 2001). A public employee bringing a First Amendment retaliation 

claim under § 1983 must demonstrate: 

(1) he engaged in constitutionally protected speech or conduct; 

(2) an adverse action was taken against him 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 his protected conduct. 

See Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006). If a plaintiff 

satisfies these three elements, then the burden shifts to the defendant to establish, by a 

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preponderance of the evidence, that it would have acted the same even absent the plaintiff’s 

protected activity. 

i. 

Defendants first challenge Klosowski’s standing to assert a First Amendment retaliation 

claim. While courts apply a relaxed approach to standing in First Amendment cases, a plaintiff 

still bears the burden of establishing this basic constitutional requirement. Fieger v. Michigan 

Supreme Court, 553 F.3d 955, 961 (6th Cir. 2009). To satisfy the Constitution’s standing 

requirement, a party must establish: 

(1) he or she has suffered an “injury in fact” that is (a) concrete and particularized 

and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly 

traceable to the challenged action of the defendant; and (3) it is likely, as opposed 

to merely speculative, that the injury will be redressed by a favorable decision. 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81, (2000). 

Both parties recognize the Supreme Court’s decision in Board of County Commissioners, 

Wabaunsee County v. Umbehr, 518 U.S. 668 (1996), holding that the Pickering balancing test 

applies to independent contractors as well as employees. Id. at 684-86 (recognizing “the right of 

independent government contractors not to be terminated for exercising their First Amendment 

Rights). Defendants, however, argue that Klosowski does not have standing to bring his claim 

because he is neither a public employee nor an independent contractor of Defendant Bay City 

performing services under an existing contract. 

In support of their argument Defendants first emphasize Duran v. City of Corpus Christi, 

240 F.App’x 639 (5th Cir. 2007). There, the plaintiff, Duran, was hired as an independent 

contractor for a private entity, Entrust, to serve as its local health plan coordinator. Id. at 640. 

The City of Corpus Christi awarded Entrust a contract to provide third-party claims 

administration and accounting services related to its health insurance program, and Entrust 

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selected Duran to serve as a local coordinator. Id. At some point Duran informed the City of 

potential problems related to an insurance claim made by an adult child of an employee, and 

leaked information regarding the disputed claim to a local newspaper. Id. Subsequently, 

following the expiration of the contract, the city decided not to award Entrust the contract for the 

following term, and instead awarded the contract to a competitor. Id. at 641. Duran then filed 

suit, alleging that the City violated § 1983 by not awarding the contract to Entrust in retaliation 

for his protected speech regarding the adult child’s claim. Id. The Fifth Circuit Court of Appeals 

found that Durand, as an independent contractor of Entrust, which was in turn an independent 

contractor of the City, did not have standing to bring a derivative claim on behalf of Entrust 

because he had not suffered his own injury in fact. Id. at 642. Defendants cite a number of 

additional cases in this vein. See Garzez v. Lopez, 281 F. App’x 323 (5th Cir. 2008) (holding 

that the agent of an independent contractor did not have standing to assert an injury resulting 

from the school board terminating its contract with the agency for which the agent worked); 

Potthoff v. Morin, 245 F.3d 710, 716 (8th Cir. 2001) (holding that a shareholder could not assert 

an injury arising from the city’s termination of a leasing agreement with his wholly owned 

corporation). 

As Plaintiff notes, the cases cited by Defendants are distinguishable from the present 

facts, where Bay City did not terminate its relationship with ITH, but only with Plaintiff 

Klosowski. Klosowski therefore is not asserting harm that results from a third party’s injury. 

Instead, Klosowski is asserting his own injury in fact – that he himself was not selected as a 

bridge tender in retaliation for his protected speech. 

Defendants also point to Housey v. McNeal, 2006 WL 1047013 (E.D. Mich. 2006). 

There, the district court held that a disappointed bidder could not bring suit against the 

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government where there was no pre-existing relationship between the contractor and the 

government. Id. at *3. Housey is distinguishable from the present case, since it is undisputed 

that Plaintiff Klosowski had an pre-existing relationship with Defendant Bay City and had 

provided bridge tending services to Defendant Bay City for over five years. 

The remaining cases cited by Defendants do not present any issues of standing. See Webb 

v. Kentucky State University, 468 F.App’x 515 (6th Cir. 2012) (holding that a university’s 

decision not to award a professor tenure or to renew her one year contract was not adverse action 

that would likely chill a person of ordinary firmness from continuing to engage in that activity); 

Sartaine v. Pennington, 244 F. App’x 718, 719 (6th Cir. 2007) (holding Umbehr inapplicable to 

a case in which a waste management company and its owner filed suit against County officials 

for failing to renew their contract where the contract had expired, there was no right of renewal, 

and the county fiscal court was required by state law to accept bids for a new contract). 

 In a sense, Klosowski’s employment arrangement is the opposite of the independent 

contractor arrangement present in Umbehr. While Umbehr was compensated by the government, 

the government had no right to supervise or control the details of how Umbehr’s work was done. 

Here, in contrast, Klosowski received no pay or benefits from Bay City, but Bay City controlled 

the day-to-day details of his job including hours, scheduling, and discipline. See Ledemsa Dep. 

13-15. Bay City also controlled whether Klosowski returned to his temporary position as a 

bridge tender each season. 

 In Braswell v. Haywood Reg’l Med. Ctr., 234 F. App’x 47 (4th Cir. 2007), the Fourth 

Circuit determined that a staff doctor must be treated as a public employee in analyzing his First 

Amendment claim. Id. at 53. The Fourth Circuit reasoned that the plaintiff staff attorney at the 

public hospital had reciprocal obligations, and that “[i]n return for the privilege to use the 

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Hospital’s facilities, staff doctors are required to be on call for certain periods each month and 

help with various administrative functions. Staff doctors consult with other doctors and assist in 

performing surgeries, and hospitals may be held jointly and severally liable for their tortious 

conduct.” Id. The Court also reasoned that “a patient admitted to the emergency room would not 

know the difference between staff doctors and doctors on the hospital payroll.” Id.

Vollette v. Watson, 937 F. Supp. 2d 706 (E.D. Va. 2013) also presents a comparable case. 

There, although the plaintiffs were directly employed by either “Aramark” (a food services 

company) or “Correct Care Solutions” (a medical services company), the plaintiffs regularly 

worked in a city jail. Id. at 710. One year after the sheriff required the contractors to undergo 

strip searches, the contractors filed suit. The sheriff then revoked the plaintiffs’ jail security 

clearance the following business day, which led the plaintiffs to amend their complaints to add 

claims that the revocation of their security clearances violated their First Amendment right to 

free speech under § 1983. Id. at 711-712. The district court concluded that the plaintiffs were 

“public employees” for the purposes of their First Amendment retaliation claims. Id. at 721. 

 Here, although Klosowski was directly employed by a staffing agency, Klosowski 

provided bridge tending services for Defendant Bay City for five years. When Bay City switched 

staffing agencies it simply had Klosowski sign employment contracts with the new agency. See 

Klosowski Dep. 30-37. Furthermore, Defendant Bay City, through Defendant Joe Ledesma, 

controlled most of the day-to-day functions of Klosowski’s employment, including his schedule, 

hours, discipline, and performance reviews. Accordingly, Klosowski will be treated as a public 

employee for purposes of his § 1983 claim. 

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ii. 

 Defendants next argue that Klosowski has not shown that he was engaged in 

constitutionally protected speech or conduct under the first prong of Pickering. “While public 

employees may not be required to sacrifice their First Amendment free speech rights in order to 

obtain or continue their employment, a state is afforded greater leeway to control speech that 

threatens to undermine the state’s ability to perform its legitimate functions.” Rodgers v. Banks, 

344 F.3d 587, 596 (6th Cir.2003) (internal citations omitted). Therefore, in the case of 

governmental employees, a plaintiff must establish that: (1) his speech touched on matters of 

public concern; and (2) his interest in commenting on the matter of public concern outweighs the 

city’s interest in promoting the efficiency of the public service it performs through its employees. 

See Cockrel v. Shelby County School Dist., 270 F.3d 1036, 1048 (6th Cir. 2001); Pickering v. 

Board of Ed. Of Tp. High School Dist. 205 Will County, Ill., 391 U.S. 563 (1968). 

a. 

 Speech that touches on matters of public concern has been defined by the Supreme Court 

as “speech relating to any matter of political, social, or other concern to the community.” Dye, 

702 F.3d at 295 (quoting Connick, 461 U.S. at 146). The Supreme Court has held that when a 

public employee speaks as an employee upon matters of personal interest instead of as a citizen 

upon matters of public concern “absent the most unusual circumstance, a federal court is not the 

appropriate forum in which to review the wisdom of a personnel decision taken by a public 

agency allegedly in reaction to the employee’s behavior.” Connick, 461 U.S. at 147. This is 

based on the premise “that while the First Amendment invests public employees with certain 

rights, it does not empower them to constitutionalize the employee grievance.” Garcetti, 547 

U.S. at 420 (internal quotation and citation omitted). “Instead, “[w]hether an employee’s speech 

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addresses a matter of public concern must be determined by the content, form, and context of a 

given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48. 

Defendants argue that Klosowski was not speaking on matters of public concern in his 

email to the mayor because he was primarily concerned with his own winter employment 

schedule. Klosowski’s subjective motivations are not dispositive of the issue. As explained by 

the Sixth Circuit, “[t]he 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 v. Jopke, 370 F.3d 580, 590-91 (6th Cir. 2004). “[T]he pertinent question is 

not why the employee spoke, but what he said.” Id. at 591. Here, the “focus,” “point,” or 

“communicative purpose” of Klosowski’s speech was to inform the Mayor of his belief that the 

City was expending unnecessary funds in staffing the bridges in the month of December. See

Mot. for Summ. J. Ex. K (“Hi Mr. Shannon, this is Ron with the concern about the unnecessary 

money being spent for the month of December [sic]. ... This is wasting our money and I don’t 

like wasting money, yours or mine[.]”) 

 Defendants also argue that Klosowski was mistaken in his statements to the mayor, 

insofar as the bridge schedule was regulated by the Army Corp of Engineers and Bay City would 

be subject to fines if it did not follow the pre-established schedule. As explained in Pickering

however, the fact that a speaker speaks erroneously does not remove his or her statements from 

the purview of First Amendment protections. Pickering, 391 U.S. at 572. As in Pickering, 

Defendants could easily have rebutted Klosowski’s omission in their own statements to the 

mayor. Absent a showing that Klosowski knowingly or recklessly made false statements, an 

error or omission in his statement to the mayor is irrelevant to the First Amendment analysis. Id. 

574-75. 

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Next, Defendants argue that Klosowski’s statements did not sufficiently touch on a 

matter of public concern because Klosowski was speaking as an employee, not a citizen. As 

explained by the Supreme Court in Garcetti, “[s]o long as employees are speaking as citizens 

about matters of public concern, they must face only those speech restrictions that are necessary 

for their employers to operate efficiently and effectively.” Garcetti, 547 U.S. at 419. 

 Plaintiff Klosowski argues that Pickering is analogous to his case. In Pickering a public 

high school teacher sent a letter to a local newspaper criticizing the way in which the Board of 

Education and superintendent had handled past proposals to raise revenue for the schools. 

Pickering, 391 U.S. at 564. The teacher was then dismissed after the Board of Education 

determined that the publication of the letter was “detrimental to the efficient operation and 

administration of the schools of the district....” Id. In finding that the teacher’s statements 

constituted protected First Amendment speech, the Supreme Court held as follows: 

[T]he question whether a school system requires additional funds is a matter of 

legitimate public concern on which the judgment of the school administration, 

including the School Board, cannot, in a society that leaves such questions to 

popular vote, be taken as conclusive. On such a question free and open debate is 

vital to informed decision-making by the electorate. Teachers are, as a class, the 

members of a community most likely to have informed and definite opinions as to 

how funds allotted to the operations of the schools should be spent. Accordingly, 

it is essential that they be able to speak out freely on such questions without fear 

of retaliatory dismissal. 

Id. at 571-72. Klosowski argues that he, as a bridge tender, was the member of the community 

most likely to have informed and definite opinions as to bridge schedules. He also argues that 

his statements were made for the public good and against his own economic interests. 

 Defendants argue that Garcetti is a more analogous case. Garcetti, 547 U.S. at 421. There 

the plaintiff served as a calendar deputy district attorney for the Los Angeles County District 

Attorney’s Office. Id. at 414. After determining that an affidavit used to obtain a critical search 

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warrant contained numerous errors and misrepresentations, the plaintiff wrote a memorandum to 

his supervisors explaining the errors and recommending dismissal of the case. Id. at 414. The 

plaintiff claimed that as a result of the memorandum he was subject to a series of retaliatory 

employment actions, and he eventually filed suit under § 1983. The Supreme Court concluded 

that the plaintiff was speaking as an employee, not as a citizen. The controlling factor, according 

to the Court was that the plaintiff’s “expressions were made pursuant to his duties as a calendar 

deputy” who’s responsibilities included the duty to “advise his supervisor about how best to 

proceed with a pending case ....” Id. at 421. Despite this holding, the Court specifically held that 

“[t]he First Amendment protects some expressions related to the speaker’s job.” Id. at 419. This 

was in recognition of the importance of “promoting the public’s interest in receiving the wellinformed views of government employees engaging in civic discussion.” Id. The Court further 

held that the fact that a plaintiff “expressed his views inside his office, rather than publicly, is not 

dispositive.” Id. at 420. 

 The present case lies somewhere in between Pickering and Garcetti. On the one hand, 

there is some evidence that Klosowski believed the Mayor was in his chain-of-command, and 

Klosowski posed at least one work-related solution to a scheduling problem. On the other hand, 

writing to the mayor regarding the bridge schedule was not in Klosowski’s official, day-to-day 

professional duties as a bridge tender. Moreover, in his email Klosowski primarily raised 

taxpayer concerns such as potential municipal waste. See Rodgers v. Banks, 344 F.3d 587, 597 

(6th Cir. 2003) (holding that “the employee’s entire speech does not have to focus on matters of 

public concern, as long as some portion of the speech does so.”). Klosowski’s e-mail accordingly 

“bore similarities to letters submitted by numerous citizens every day.” Garcetti, 547 U.S. at 

422. Because Klosowski wrote to the mayor primarily as a taxpaying citizen with special 

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knowledge of the bridge schedule – not pursuant to any official job duty – his statements touch 

on a matter of public concern. See Czurlanis v. Albanese, 721 F.2d 98, 104 (3d Cir. 1983) 

(concluding that a plaintiff “spoke as a concerned citizen and taxpayer and not as an aggrieved 

employee” in protesting wasted taxpayer money and alleged deficiencies in record keeping at a 

public meeting of the Union County Board of Chosen Freeholders). 

b.

To proceed in his § 1983 claim Klosowski must also establish that his interest in 

commenting on the matter of public concern outweighs the City’s interest in promoting the 

efficacy and efficiency of its bridge services. See Cockrel, 270 F.3d at 1048; Pickering, 391 U.S. 

at 568. As explained by the Sixth Circuit: 

In order to justify a restriction on speech of public concern by a public employee, 

plaintiff’s speech must impair discipline by superiors, have a detrimental impact 

on close working relationships, undermine a legitimate goal or mission of the 

employer, impede the performance of the speaker’s duties, or impair harmony 

among co-workers. The state bears the burden of showing a legitimate 

justification for discipline. 

Meyers v. City of Cincinnati, 934 F.2d 726 (6th Cir.1991). Relevant factors in this regard 

include “the manner, time, and place of the employee’s expression,” as well as “the context in 

which the dispute arose.” Rankin, 483 U.S. at 388, 107 S.Ct. 2891. Defendants bear the burden 

of demonstrating that such legitimate grounds existed to justify the termination. Connick, 461 

U.S. at 150. 

 Here, the expression was an email sent to the mayor after Klosowski unsuccessfully 

raised scheduling concerns with Defendant Ledesma. Defendants argue that Klosowski’s 

communication to the mayor impacted working relationships, undermined the employer’s goal of 

complying with the navigational schedule implemented by regulation through the Army Corp of 

Engineers, and impaired harmony among co-workers. Defendants also suggest that Klosowski’s 

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interest in communicating with the mayor was slight, because his direct supervisor, Joe Ledema, 

had already resolved any scheduling issues. Klosowski counters that his speech was actually 

consistent with Bay City’s interests in effectively managing its bridge schedules and reducing 

costs. He argues that this is evidenced by the fact that Bay City adopted some of his suggestions, 

such as removing Ledesma from Friday coverage on the bridge, and the fact that city personnel 

initially suggested expanding his proposals. 

 Defendants are incorrect in their assertion that Klosowski’s actions impaired Bay City’s 

goal of complying with the navigational schedule implemented by regulation through the Army 

Corp of Engineers. Klosowski’s email to the mayor was a scheduling suggestion that was never 

adopted by the City. It therefore had no effect on Bay City’s compliance with federal 

regulations. Defendants are also incorrect in their assertion that Defendant Ledesma had already 

resolved the scheduling issues raised by Klosowski, as the fact that Klosowski’s supervisor 

disagreed with his protected speech does not outweigh Klosowski’s First Amendment right to 

petition his local government. 

 Defendants have provided evidence that Klosowski’s e-mail caused disharmony between 

Klosowski and Defendant Ledesma, as well as between Klosowski and his co-workers. 

Specifically, Defendants argue that Klosowski’s co-workers became concerned about their 

potential loss of December hours, and that some discussed circulating a petition asking 

management not to return Klosowski for the next season. See Mot. for Summ. J. Ex. H. As 

explained by the Fifth Circuit, “[t]he First Amendment balancing test [of Pickering ] can hardly 

be controlled by a finding that disruption did occur.” Porter v. Califano, 592 F.2d 770, 773–74 

(5th Cir.1979) (emphasis in original). Instead, the Court must balance the disruption or 

disharmony with the speech at issue. Id. Defendants have presented no evidence that 

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Klosowski’s email disrupted the efficient functioning of the bridges. It is also unclear to what 

extent Ledesma was responsible for adding to this disharmony. Furthermore, Klosowski’s is 

correct with regard to his claim that his email was consistent with Bay City’s interest in 

maintaining the bridges in a cost-efficient manner and avoiding tax-payer waste. Viewing all of 

the facts in a light most favorable to Plaintiff Klosowski, Defendants have not demonstrated a 

state interest that outweighs Klosowski’s First Amendment right to speak on matters of public 

concern. 

iii.

 In their motion for summary judgment, Defendants do not challenge Plaintiff 

Klosowski’s § 1983 claims on the second or third prong of Pickering. Accordingly, those issues 

are not addressed. Defendants do argue that Defendant Ledesma is entitled to qualified 

immunity. Under 42 U.S.C. § 1983, Government officials are immune from civil liability “when 

performing discretionary duties, provided ‘their conduct does not violate clearly established 

statutory or constitutional rights of which a reasonable person would have known.’” Whitney v. 

City of Milan, 677 F.3d 292, 296 (6th Cir. 2012) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 

(1982). In determining whether a government official enjoys qualified immunity for a particular 

act, courts must apply a two-prong test: “(1) we inquire whether the facts, viewed in the light 

most favorable to the nonmoving party, show the officer’s conduct violated a constitutional right; 

and (2) if so, then we determine whether the constitutional right was clearly established by 

asking whether a reasonable official would understand that what he is doing violates that right. 

Whitney, 677 F.3d at 296 (citing Saucier v. Katz, 533 U.S. 194, 201–02 (2001)). “A right is 

clearly established if the contours of the right are sufficiently clear so that a reasonable officer 

would have understood, under the circumstances at hand, that his behavior violated the right.” 

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Bailey v. Kennedy, 349 F.3d 731, 741 (4th Cir.2003) (internal quotation marks and alteration 

omitted). In other words, “existing precedent must have placed the statutory or constitutional 

question ... beyond debate.” Occupy Nashville v. Haslam, 769 F.3d 434, 443 (6th Cir. 2014) 

(quoting Plumhoff v. Rickard, 134 S.Ct. 2012, 2023 (2014). 

 The above analysis demonstrates that the first prong is satisfied. Therefore, the question 

becomes whether the constitutional right was clearly established by asking whether a reasonable 

official would understand that what he is doing violates that right. Saucier, 533 U.S. at 202. 

There is no doubt that public employees may not be fired on a basis that infringes their 

First Amendment Rights. Furthermore, the Supreme Court has held that government actors 

“may not deny a benefit to a person on a basis that infringes on his constitutionally protected 

freedom of speech even if he has no entitlement to that benefit.” Umbehr, 518 U.S. at (internal 

citations and quotation omitted). However, broad principles are not dispositive at this stage of 

the analysis, where the right at issue must be defined narrowly, focusing on “the crucial question 

whether the official acted reasonably in the particular circumstances that he or she faced.” 

Plumhoff, 134 S.Ct. at 2023. The question therefore becomes whether a reasonable government 

official would have known that Klosowski’s email to the mayor regarding bridge scheduling 

issues, outside the normal chain of command, touched on a matter of public concern, and 

whether consequently not asking Klosowski back as a bridge tender for the next year violated his 

First Amendment right. 

Ledesma’s decision lands in a grey area for two reasons: first because Ledesma could 

have perceived that Klosowski was speaking as an (uninformed) employee instead of a citizen; 

and second because Ledesma did not terminate Klosowski’s emploment, but merely chose not to 

ask him back after his temporary term had expired. Because “[o]fficials are not liable for bad 

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guesses in gray areas” Ledesma is entitled qualified immunity on Klosowski’s First Amendment 

claim. Campbell v. Galloway, 483 F.3d 258, 272 (4th Cir. 2007). Klosowski’s § 1983 claim 

against Defendant Ledesma will be dismissed. 

B.

 Because Klosowski’s federal § 1983 claim against the city survives summary judgment, 

this Court properly retains jurisdiction over Klosowski’s state law claims. In his amended 

complaint, Klosowski raises two tort claims against Defendant Bay City and Defendant 

Ledesma. Klosowski asserts that Defendants’ conduct constitutes tortious interference with an 

advantageous business relationship and tortious interference with a contractual relationship. 

Specifically, he argues that Ledesma’s conduct constituted tortious interference with his at-will 

relationship with Bay City. 

i. 

Defendants first argue that Klosowski’s tort claims against Defendant Bay City must be 

dismissed because under the Governmental Tort Liability Act Bay City is immune from tort 

liability while engaged in the exercise or discharge of governmental functions. M.C.L. 

691.1407(1). Klosowski does not contest Defendants’ claims in his response. Accordingly 

Klosowski’s tort claims will be dismissed as to Defendant Bay City. 

ii.

 Defendants also argue that Klosowski’s tort claims against Defendant Joe Ledesma 

should be dismissed for four reasons: (1) Defendant Ledesma is immune from tort liability; (2) 

Klosowski was not party to and did not suffer a breach of contract; (3) Klosowski did not suffer a 

breach or termination of a business expectancy; and (4) Ledesma did not intentionally or 

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wrongfully induce or cause a breach of a third-party business relationship. These arguments will 

be addressed in turn. 

a.

 Defendants first argue that Klosowski’s intentional tort claims against Defendant 

Ledesma should be dismissed because Ledesma is immune from tort liability. As explained by 

the Michigan Supreme Court in Odom v. Wayne County, 482 Mich. 459 (Mich. 2008), party 

seeking to invoke individual governmental immunity for intentional torts must establish the 

following: 

(a) The acts were undertaken during the course of employment and the employee was 

acting, or reasonably believed that he was acting, within the scope of his authority, 

(b) the acts were undertaken in good faith, or were not undertaken with malice, and 

(c) the acts were discretionary, as opposed to ministerial. 

Id. 

The parties dispute whether the good faith element is satisfied. The Michigan Supreme 

Court has defined as “‘malicious intent, capricious action or corrupt conduct’ or ‘willful and 

corrupt misconduct.’” Id. at 474 (citing Amperse v. Winslow, 75 Mich. 234, 245 (Mich. 1889). 

Defendants argue that Klosowski has not presented any evidence that Ledesma did not act in 

good faith in deciding not to select Klosowski as a bridge tender for the 2013 season. 

Defendants further argue that Ledesma made the decision for the legitimate reason of replacing 

full time bridge tenders with part time bridge tenders. Klosowski disagrees, arguing that the 

record suggests Ledesma did not act in good faith. Klosowski emphasizes testimony and 

documents suggesting that Ledesma misrepresented the timing of his decision, misrepresented 

Klosowski’s interpersonal work record, and chose not to select Klosowski based on a personal 

grievance – specifically that he was angry at Klosowski for bringing his concerns to the mayor. 

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Taking all facts in a light most favorable to Klosowski, the question of whether Ledesma acted in 

good faith is a material dispute of fact. 

b.

Defendants next argue that Ledesma cannot be liable for tortious interference with a 

contractual relationship because Klosowski was not party to and did not suffer a breach of 

contract. Klosowski argues that Ledesma tortuously interfered with his at-will contract with Bay 

City. To proceed on a claim of tortious interference with a contractual relationship, a plaintiff 

must establish three elements: “(1) the existence of a contract, (2) a breach of the contract, and 

(3) an unjustified instigation of the breach by the defendant.” Health Call of Detroit v. Atrium 

Home & Health Care Servs., Inc., 706 N.W.2d 843, 849 (Mich. 2005). Because it is undisputed 

that Klosowski was informed that he qualified for other assignments through ITH and chose not 

to return to ITH for a subsequent assignment, Klosowski cannot as a matter of law proceed in his 

claim that Ledesma tortuously interfered with his contractual relationship with ITH. The fact 

that Klosowski was not asked to return as a bridge tender had no bearing on his ability to 

continue his relationship with ITH. 

c.

 Defendants also move to dismiss Klosowski’s claim of tortious interference with a 

business expectancy. The elements of tortious interference with a business relationship or 

expectancy are “(1) the existence of a valid business relationship or expectancy that is not 

necessarily predicated on an enforceable contract, (2) knowledge of the relationship or 

expectancy on the part of the defendant interferer, (3) an intentional interference by the 

defendant inducing or causing a breach or termination of the relationship or expectancy, and (4) 

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resulting damage to the party whose relationship or expectancy was disrupted. Health Call of 

Detroit, 706 N.W.2d at 849. 

In his complaint Klosowski alleges that “Joe Ledesma intentionally interfered with the 

advantageous business relationship of the Plaintiff with ITH and caused his termination not for 

the benefit of Bay City, but for his own personal motivation including but not limited to anger, 

retaliation and jealousy.” Compl. ¶ 51. Defendants argue that Ledesma did not induce or cause a 

termination of the relationship or expectancy, as Plaintiff himself chose not to report to ITH for 

assignments after he was not asked back as a bridge tender. Because it is undisputed that 

Klosowski was informed that he qualified for other assignments through ITH and chose not to 

return to ITH for a subsequent assignment, he cannot proceed in his claim that Ledesma 

tortuously interfered with his business relationship with ITH.1

 Klosowski Dep. 184-190; Mot. 

for Summ. J. Ex O. The fact that Bay City did not ask Klosowski to return had no bearing on 

Klosowski’s ability to continue his relationship with ITH. 

C.

Finally Defendants move to dismiss Klosowski’s claim that their actions were in 

violation of Michigan public policy and the Michigan constitution’s guarantee of freedom of 

speech. Defendants argue that Klosowski has no remedy under the Michigan Constitution and 

that the facts alleged by Klosowski do not support a violation of Michigan public policy. 

i.

 In his complaint, Klosowski alleges that Defendants’ conduct violated Article 1, § 5 of 

the Michigan Constitution, which provides that, “[e]very person may freely speak, write, express 

and publish his views on all subjects... and no law shall be enacted to restrain or abridge the 

 

1

 Klosowski suggests in his response that Ledesma could be held liable for tortuously interfering with his 

relationship with Bay City. Klosowski makes no allegation that Ledesma interfered with his relationship with Bay 

City in his complaint, and so this argument will not be addressed. 

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liberty of speech or of the press.” Defendants argue that Jones v. Powell, 462 Mich. 329 (Mich. 

2000) precludes such a claim. 

In Jones, the Michigan Supreme Court held that there was no inferred damage remedy 

available “for a violation of the Michigan Constitution in an action against a municipality or an 

individual government employee.” Id. at 335. The Court explained that because municipalities 

and their employees are not protected by 11th Amendment immunity, plaintiffs are able to seek 

damages against them under § 1983. Id. The Court concluded that, because the plaintiffs had an 

available remedy under § 1983, plaintiffs could not seek damages for alleged violations of the 

Michigan Constitution. Id. See also Trakhtenberg v. Oakland Cty., 2015 WL 6449327, at *23 

(E.D. Mich. Oct. 26, 2015) (“Accordingly, under Jones, Plaintiff cannot seek damages for an 

alleged violation of the Michigan Constitution because other potential avenues of relief – § 1983 

claims and state-law tort claims – exist.”); Evans v. Wayne Cty., 2011 WL 5546230, at *12 (E.D. 

Mich. Nov. 10, 2011) (“Because another avenue of relief is available to obtain damages from the 

county and its officials, under Jones, Plaintiff’s state constitutional claims are barred.”). Because 

Klosowski has an available remedy under § 1983 against municipality Bay City and its 

employee, Ledesma, pursuant to Jones he has no remedy under the Michigan state constitution. 

His state constitution claim will therefore be dismissed. 

ii.

 Defendants also argue that Klosowski has not established a violation of Michigan public 

policy claim. As explained by the Michigan Supreme Court, “in the absence of a contractual 

basis for holding otherwise, either party to an employment contract for an indefinite term may 

terminate it at any time for any, or no, reason.” Suchodolski v. Michigan Consol. Gas Co., 316 

N.W.2d 710, 711 (Mich. 1982). However, “an employer is not free to discharge an employee at 

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will when the reason for the discharge contravenes public policy.” McNeil v. Charlevoix Cty., 

772 N.W.2d 18, 24 (Mich. 2009). To state a claim that an employee’s at-will discharge violates 

Michigan public policy, a plaintiff must allege one of the following: “(1) the employee is 

discharged in violation of an explicit legislative statement prohibiting discharge of employees 

who act in accordance with a statutory right or duty; (2) the employee is discharged for the 

failure or refusal to violate the law in the course of employment; or (3) the employee is 

discharged for exercising a right conferred by a well-established legislative enactment.” Id. 

 Plaintiff Klosowski alleges in his complaint that there is “a strong public policy regarding 

freedom of speech about issues of Municipal waste as guaranteed by the Michigan Constitution.” 

Klosowski has identified no legislative-enactments aside from the Michigan state constitution in 

support of his public policy claim. The Michigan Supreme Court has explained that “[a] public 

policy claim is sustainable...only where there also is not an applicable statutory prohibition 

against discharge in retaliation for the conduct at issue. Dudewicz v. Norris-Schmid, Inc., 503 

N.W.2d 645, 650 (Mich. 1993) disapproved of on other grounds by Brown v. Mayor of Detroit, 

734 N.W.2d 514 (2007)). Because § 1983 provides a statutory remedy for Plaintiff, as discussed 

above, Klosowski’s public policy claim must be dismissed. 

III.

 Accordingly, it is ORDERED that Defendants’ motion for summary judgment, ECF No. 

10, is GRANTED IN PART AND DENIED IN PART.

 It is further ORDERED that counts I-III of Plaintiff Klosowski’s amended complaint, 

ECF No. 1, are DISMISSED with prejudice. 

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It is further ORDERED that count IV of Plaintiff Klosowski’s amended complaint, ECF 

No. 1, is DISMISSED with prejudice as to Defendant Joe Ledesma only. Count IV survives as 

to Defendant Bay City. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: February 17, 2016 

 

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 February 17, 2016. 

 s/Johnetta Curry 

 JOHNETTA CURRY 

 Acting Case Manager 

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