*

The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0135p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOHN CLEMENTE; BRIAN DAILEY; JOHN

WERKSMA; DENNIS STOL; KAREN STOL;

CHARLES TAYLOR II; GLENN RAY; BRIAN

DEPALMA,

 Plaintiffs-Appellants,

v.

FRANK VASLO,

 Defendant,

STEVE DUCHANE; ROBERT BARTOK; CITY OF

LINCOLN PARK,

Defendants-Appellees.

X

-

-

-

-

>

,

-

-

-

-

-

-

-

-

-

-

-

N

No. 10-2506

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:09-cv-13854—Robert H. Cleland, District Judge.

Decided and Filed: May 15, 2012 

Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.*

_________________

COUNSEL

ON BRIEF: Joel B. Sklar, Detroit, Michigan, Karen Mendelson, Ann Arbor, Michigan,

for Appellants. Rosalind Rochkind, Roger A. Smith, GARAN LUCOW MILLER, P.C.,

Detroit, Michigan, Michael S. Borgen, PLUNKETT COONEY, Kalamazoo, Michigan,

for Appellees.

1
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 2

_________________

OPINION

_________________

McKEAGUE, Circuit Judge. Plaintiffs, with the exception of Karen Stol, are

former employees of the City of Lincoln Park who were terminated after the City

determined that they had tampered with their water meters. Plaintiffs claim that their

Fourth Amendment rights were violated when city officials came to their homes to

inspect their water meters and that they were terminated in retaliation for asserting those

rights. Additionally, one Plaintiff claims that he was discharged in violation of his First

Amendment right to association. The district court dismissed the Fourth Amendment

claims against individual officials on qualified immunity grounds and granted summary

judgment in favor of Defendants on the retaliation, right to association, and municipal

liability claims. We AFFIRM.

I. BACKGROUND 

Defendant Steve Duchane is the manager of the City of Lincoln Park (“City”).

He met several times with outside auditors regarding the City’s loss of water revenue.

One of the auditors suggested water theft as a possible explanation, and Duchane

decided to investigate. Mazhgon Rajaee, a City intern, was given the task of preparing

a water usage study surveying active and retired public employees. City employees were

chosen to be the test group because the City already possessed information regarding the

number of household members in each home, facilitating analysis. Rajaee used two

years of billing information to complete her study. The study showed that the average

water usage over that two-year period was 162 units for active employees and 146 units

for retirees. The study also showed that the nine lowest consumers were all employees

of the Department of Public Services (“DPS”). This group of nine consisted of Ronald
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 3

1

The nine lowest consumers and their consumption rates over the test period were the following:

Dennis Stol (29 units), Ronald DePalma (31 units), John Clemente (42 units), John Werksma (44 units),

Brian Dailey (46 units), Glenn Ray (51 units), Michael Shaffer (69 units), Charles Taylor (70 units), and

Brian DePalma (71 units).

2

Lincoln Park’s City Ordinance No. 1042.08, governing “Right of Entry and Repair of

Connections,” provides that “[t]he duly constituted authorities of the City may, at all reasonable hours,

enter, with the occupant’s approval, upon any premises where water service is established for the purpose

of inspecting and making an examination of the water meter and outward therefrom to the curb stop. Such

City authorities may require water connections to meters to be repaired, removed, replaced or changed

where the same are defective or not in compliance with this chapter or other applicable ordinances of the

City as such authorities deem necessary. If such repair, replacement, or alteration is not made as required,

the City may make such repair, replacement or alteration and charge the actual cost thereof to the parties.

Any persons whose premises are supplied with water shall be deemed as having assented to the provisions

of this chapter.”

City Ordinance No. 1042.12 states that “[n]o person shall damage, break, remove, modify, alter

or tamper with any water meter for the purpose of providing water to any premises without going through

the meter.

DePalma, Michael Shaffer, and all of the Plaintiffs except Karen Stol, who was not a

DPS employee.1

Duchane discussed these results with City Attorney Edward Zelenak and

scheduled a meeting with the Wayne County Prosecutor’s Office. Assistant Prosecuting

Attorney Richard Hathaway suggested that the City investigate whether the water meters

had been physically tampered with. Deputy Brian White, a Detective with the Wayne

County Sheriff’s Department, was assigned to assist the City with its investigation.

Robert Bartok, the Director of DPS, and White met with Duchane to discuss the

investigation. With guidance from the prosecutor’s office, they developed a tiered plan

to gain access to the water meters. First, Bartok and White would ask the resident if they

could inspect the meter. If access was refused, they would ask the resident if they could

inspect the meter pursuant to a city ordinance that allows city officials to enter, with the

occupant’s approval, any premises with water service for the purpose of inspecting the

meter.2

 If refused access again, Mr. Bartok would give a direct order as the resident’s

supervisor to see the meter. If the resident continued to refuse access to the meter, White

and Bartok would leave the residence and seek a warrant.

Bartok and White visited DPS employees suspected of water theft on June 30,

2009. They first visited Ronald DePalma, a DPS Supervisor. Bartok and White

requested to inspect the water meter. DePalma consented and led Bartok and White to
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 4

the meter. The meter head was leaning to one side and a screw was out of place.

DePalma admitted to having turned the meter on and off. He ultimately resigned from

his position with the City and is not a party to this case.

Next, Bartok and White went to the home of Plaintiffs Dennis and Karen Stol.

Mrs. Stol testified that Detective White said he and Bartok “[had] to come in and look

at the meter,” that she said “no” a couple of times, and that she said she’d rather wait

until her husband arrived home. She stated that Detective White was “very persistent

and adamant about coming in.” Mrs. Stol added that she let White and Bartok in only

after she asked whether it would affect her husband’s job and Bartok answered yes.

Bartok, however, denied being asked that question, and both Bartok and White testified

that, upon request, Mrs. Stol allowed them inside and led them to the meter. The Stols’

meter head was not attached to the rest of the meter and a security screw was missing.

Plaintiff John Clemente’s home was next. Bartok and White requested to see his

water meter, but Clemente refused access into his home without a warrant. Bartok cited

the city ordinance, to no avail. Bartok then gave Clemente a direct order to allow him

to inspect the meter, but Clemente continued to refuse access. White informed Clemente

that they could get a search warrant but would prefer it if Clemente just gave his

authorization. White and Bartok testified that Clemente became animated, stating that

“he knew what was going on” and was “going to call everyone to let them know what

was going on.” Bartok and White then left. Clemente testified that White acknowledged

Clemente was not obligated to let them into his house without a warrant.

Bartok and White next visited Plaintiff Brian Dailey. They told Dailey of their

intention to investigate illegal water usage and requested to see Dailey’s water meter.

Dailey refused to let them into his house without a warrant. Bartok cited the city

ordinance and gave Dailey a direct order as his supervisor, but Dailey still refused entry,

at which point Bartok and White left. Dailey testified that Bartok “got right in [his]

face” and yelled when he gave the direct order.
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 5

Next, Bartok and White visited Plaintiff Charles Taylor. Nobody answered the

door, so Bartok and White left. Bartok noted that Taylor had a pool and nice

landscaping.

Bartok and White then visited Plaintiff Glenn Ray. They explained they were

investigating water meter tampering and requested to see Ray’s water meter. Bartok and

White testified that Ray hesitated or seemed to think about it and then allowed Bartok

and White inside to inspect the meter. Bartok stated he did not give Ray a direct order,

but Ray testified that Bartok did so and additionally informed Ray that he had authority

to inspect Ray’s meter at any time. While guiding Bartok and White to the meter, Ray

became agitated, saying, “I f–ed up,” “you got me,” “I’m sorry,” and “I can’t get fired,”

and began pacing, shaking, and sweating. Ray’s meter was disconnected and the head

was hanging from a wire.

Lastly, Bartok and White visited Plaintiff John Werksma. White informed

Werksma that they were investigating water meter tampering and requested to look at

Werksma’s meter, upon which Werksma immediately complied. Werksma testified that

he voluntarily let White and Bartok into his home. He stated he was anxious because he

believed the city was trying to eliminate his position but that he did not resist White and

Bartok’s entry to his home. Upon viewing the meter, White and Bartok observed that

the head was removed from the body. Werksma mentioned that plumbers must have

knocked the meter head off the body.

 After these inspections, Bartok and White submitted written reports to Duchane

and the Wayne County Prosecutor’s Office.

On July 14, 2009, Lieutenant Martin of the Lincoln Park Police, along with

Bartok and Ed Collins, an independent plumbing contractor retained by the City,

executed warrants to search for and seize the water meters located at the residences of

Clemente, Dailey, Taylor, Brian DePalma, and Michael Shaffer. Bartok later submitted

to Duchane a written report briefly reviewing each visit. He reported that Dailey’s and

Clemente’s meters exhibited visible signs of tampering, that Taylor’s and DePalma’s

meters did not show any immediate signs of malfunction, that Shaffer’s meter showed
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 6

no tamper marks, and that both he and Collins concluded that Schaffer’s meter had not

been tampered with.

The seized meters were taken to an evidence room at the police department. The

City retained Martin Ladd, Director of Public Services for the City of Hamtramck, to

inspect them further. Ladd was not given the historical water usage of the Plaintiffs and

instructed to simply inspect the physical condition of the meters for anything out of the

ordinary. He testified that he found indications the meters were damaged or otherwise

not normal, such as missing security pins, abnormal positioning of the meter heads, and

scratches on the meter even though the pin was not damaged. He stated that such defects

were not necessarily the result of intentional tampering and could have been caused by

faulty installation. He could not definitively conclude, based on his inspection, that any

of the Plaintiffs had tampered with their meter but stated that he would not rule it out as

a possibility.

On July 24, 2009, Plaintiffs (except Karen Stol) were notified that the

investigation had revealed evidence supporting charges that they improperly received

water service and tampered with their meters. Plaintiffs were given an opportunity to

respond to the charges. Disciplinary hearings were held, and Plaintiffs were ultimately

terminated.

Following Plaintiffs’ terminations, arbitration proceedings were held in

accordance with their rights under their collective bargaining agreement. Arbitration

award opinions issued for Stol, Clemente, Dailey, Taylor, and Brian DePalma. All five

terminations were upheld by the arbitrator.

Plaintiffs then filed suit against Frank Vaslo (mayor of Lincoln Park), Duchane,

Bartok, and the City for violations of their constitutional rights pursuant to 42 U.S.C.

§ 1983. The Stols, Ray, and Werksma alleged violations of their Fourth Amendment

right to be free from unreasonable searches and seizures, claiming that their consent was

coerced. Dailey, Clemente, and Taylor claimed they were terminated in retaliation for

asserting their Fourth Amendment rights. Brian DePalma claimed that he was

discharged simply because his brother, Ronald DePalma, admitted to tampering with his
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 7

3

Plaintiffs have not appealed this ruling; thus, Valso is not a party to this appeal.

water meter, which violated his First Amendment associational rights. Plaintiffs also

alleged state law defamation claims.

The district court found that Duchane and Bartok were protected by qualified

immunity on the Fourth Amendment claim and that they were entitled to summary

judgment on Plaintiffs’ retaliation and right to association claims. The court granted

summary judgment in favor of Defendant Vaslo, finding Plaintiffs failed to allege any

specific facts as to his involvement in the events and that he could not be held liable on

a theory of respondeat superior.3

 The court also granted summary judgment in favor of

the City, finding that Plaintiffs failed to establish a municipal policy or custom resulting

in a deprivation of federal rights. Lastly, the district court dismissed without prejudice

Plaintiffs’ state law claims. Clemente v. Vaslo, No. 09-13854, 2010 WL 4636250 (E.D.

Mich. Nov. 5, 2010).

II. ANALYSIS

A. Standard of Review

This Court reviews a district court’s grant of summary judgment de novo. Binay v.

Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010). Summary judgment is appropriate when the

materials in the record “show[] 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). “In deciding a

motion for summary judgment, the court must view the factual evidence and draw all

reasonable inferences in favor of the nonmoving party.” Salling v. Budget Rent-A-Car Sys.,

Inc., 672 F.3d 442, 444 (6th Cir. 2012) (internal quotation marks omitted).

B. Warrantless Search Claims of Stol, Ray, and Werksma

The Stols, Ray, and Werksma claim that their consent allowing Bartok and White into

their homes to inspect their water meters was involuntary, resulting in an illegal search

prohibited by the Fourth Amendment. Defendants claim their actions are protected by qualified

immunity.
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 8

“The doctrine of qualified immunity protects government officials ‘from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The

Supreme Court has laid out a two-step inquiry to determine if qualified immunity protects an

official’s actions: (1) whether, “[t]aken in the light most favorable to the party asserting the

injury, . . . the facts alleged show the officer’s conduct violated a constitutional right[],” and

(2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001),

overruled on other grounds by Pearson, 555 U.S. at 236. Courts may “exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S.

at 236.

1. Fourth Amendment Right

The right at issue is the Fourth Amendment right to be free of “unreasonable searches

and seizures.” U.S. Const. Amend. IV. “[A] search conducted without a warrant issued upon

probable cause is ‘per se unreasonable . . . subject only to a few specifically established and

well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (omission

in original) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One of these specifically

established exceptions is a search pursuant to consent, which must be voluntarily given. Id. 

“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or

coercion, express or implied, is a question of fact to be determined from the totality of all the

circumstances.” Id. at 227. This includes considering the characteristics of the individual

giving consent, such as “age, intelligence, and education”; whether the questioner engaged in

“coercive or punishing conduct”; and the presence of “more subtle forms of coercion that might

flaw an individual’s judgment.” United States v. Beauchamp, 659 F.3d 560, 572 (6th Cir.

2011) (alteration, citations, and internal quotation marks omitted). “The government bears the

burden of proving, through clear and positive testimony[,] that the consent to search was given

voluntarily.” Id. at 571 (internal quotation marks omitted).
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 9

Plaintiff Werksma has failed to state a Fourth Amendment claim. Werksma himself

stated that he voluntarily let Bartok and White into his home. Though Werksma also testified

that he felt anxious because he believed the city was eliminating jobs, he did not act under any

threats or other coercive tactics. He has shown nothing more than that he acted voluntarily in

a manner least likely to endanger his job. As the Supreme Court has noted,“the question is not

whether the [individual] acted in her ultimate self-interest, but whether she acted voluntarily.”

United States v. Mendenhall, 446 U.S. 544, 559 (1980).

The Stols and Ray, however, claim to have consented only after Bartok threatened their

employment. Karen Stol testified that she refused Bartok and White entry a couple times and

let them in only upon being informed that the matter would affect her husband’s job. Ray

testified that he let Bartok and White in because he was given a direct order. The Stols and Ray

argue that such threats to their jobs create an issue of fact as to whether consent was voluntary.

We do not express an opinion on whether the alleged action constitutes coercion within the

meaning of the Fourth Amendment and decide the issue on grounds that the law was not clearly

established.

2. Clearly Established Law

For a right to be clearly established, “[t]he contours of the right must be sufficiently

clear that a reasonable official would understand that what he is doing violates that right.”

Anderson v. Creighton, 483 U.S. 635, 640 (1987). “It is important to emphasize that this

inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general

proposition.’” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier, 533 U.S. at

201). “The general proposition, for example, that an unreasonable search or seizure violates

the Fourth Amendment is of little help in determining whether the violative nature of particular

conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) (citing

Saucier, 533 U.S. at 201-02). Thus, “[t]he relevant, dispositive inquiry . . . is whether it would

be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Saucier, 533 U.S. at 202 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).

“We look first to the decisions of the Supreme Court, and then to the case law of this

circuit in determining whether the right claimed was clearly established when the action
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 10

4

That section provided: “If any councilman or other officer or employee of the city shall, after

lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative

committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared

shall refuse to testify or to answer any question regarding the property, government or affairs of the city

or of any county included within its territorial limits, or regarding the nomination, election, appointment

or official conduct of any officer or employee of the city or of any such county, on the ground that his

answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of

any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term

or tenure of office or employment shall terminate and such office or employment shall be vacant, and he

shall not be eligible to election or appointment to any office or employment under the city or any agency.”

Uniformed Sanitation Men, 392 U.S. at 282 n.3.

complained of occurred.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th

Cir. 2002) (citing Black v. Parke, 4 F.3d 442, 445 (6th Cir. 1993)). “[T]he case law must

‘dictate, that is, truly compel (not just suggest or allow or raise a question about), the

conclusion for every like-situated, reasonable government agent that what defendant is doing

violates federal law in the circumstances.’” Id. (quoting Saylor v. Bd. of Educ. of Harlan Cnty.,

118 F.3d 507, 515 (6th Cir. 1997)). Plaintiffs bear the burden of showing the claimed right was

clearly established. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).

Plaintiffs cite to Uniformed Sanitation Men Ass’n, Inc., v. Commissioner of Sanitation

of the City of New York, 392 U.S. 280 (1968) as the clearly established law that controls this

case. There, the New York Commissioner of Investigation looked into allegations that

employees of the Department of Sanitation were charging improper fees to use certain city

facilities and pocketing the proceeds. The petitioners were 15 sanitation employees who were

summoned before the Commissioner, and each was advised that pursuant to § 1123 of the New

York City Charter,4

 “if he refused to testify with respect to his official conduct or that of any

other city employee on the grounds of self-incrimination, his employment and eligibility for

other city employment would terminate.” 392 U.S. at 282. Twelve of the petitioners

nonetheless asserted their constitutional privilege against self-incrimination and refused to

testify, upon which they were dismissed “on the explicit ground . . . that they had refused to

testify.” Id. Three of the petitioners subjected themselves to questioning and denied the

charges. They were suspended and subsequently summoned before a grand jury and asked to

sign waivers of immunity, which they refused. After an administrative hearing, they were

dismissed “on the sole ground that they had violated § 1123 of the City Charter by refusing to

sign waivers of immunity.” Id. at 282-83. The United States Supreme Court held that New
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 11

York could not force the petitioners to choose between surrendering their constitutional rights

or their jobs and concluded they had been wrongfully dismissed. Id. at 284-85.

Gardner v. Broderick, 392 U.S. 273 (1968), the companion case to Uniformed

Sanitation Men, involved similar facts and came to a similar conclusion. There, a police officer

was summoned to testify before a grand jury and was asked to sign a waiver of immunity after

being told he would be fired if he did not sign one. He refused, was given an administrative

hearing, and was discharged solely for this refusal. Gardner, 392 U.S. at 274-75. Though the

Court acknowledged that one’s privilege against self-incrimination can be knowingly and

voluntarily waived, it concluded that “the mandate of the great privilege against selfincrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce

a waiver of the immunity it confers on penalty of the loss of employment.” Id. at 279.

One more case bears mention. Garrity v. New Jersey, 385 U.S. 493 (1967), a

counterpart to the aforementioned Supreme Court cases, involved police officers under

investigation who were informed they could claim their privilege against self-incrimination but

that refusal to answer a question would subject them to termination. The appellant officers did

not claim the privilege and answered the questions, which answers then led to their criminal

prosecutions and convictions. The Garrity Court held that the officers’ statements were

products of coercion obtained in violation of due process:

The choice given petitioners was either to forfeit their jobs or to incriminate

themselves. The option to lose their means of livelihood or to pay the penalty

of self-incrimination is the antithesis of free choice to speak out or remain

silent. That practice . . . is likely to exert such pressure on an individual as to

disable him from making a free and rational choice. We think the statements

were infected by the coercion inherent in this scheme of questioning and cannot

be sustained as voluntary under our prior decisions.

385 U.S. at 497-98 (citation and internal quotation marks omitted).

Though Uniformed Sanitation Men and its ilk involved the Fifth Amendment rather than

the Fourth, the cases may stand for the broader proposition that public employees cannot be

given a stark choice between asserting a constitutional right and keeping their jobs. See

Uniformed Sanitation Men, 392 U.S. at 284 (finding that the offensive aspect of the
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 12

5

Though Garrity drew from the Court’s cases on the voluntariness of confessions under the Due

Process Clause of the Fourteenth Amendment, such analysis is equally applicable to the voluntariness of

consent under the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 223-29 (1973)

(drawing from Fourteenth Amendment confession law to determine the meaning of voluntariness under

the consent exception to the warrant and probable cause requirements of the Fourth Amendment and

concluding that “there is no reason for us to depart in the area of consent searches, from the traditional

definition of ‘voluntariness’”).

proceedings against petitioners was that they “present[ed] them with a choice between

surrendering their constitutional rights or their jobs”). As Garrity explained, the presentment

of such a choice is coercive.5 385 U.S. at 497-98. The Sixth Circuit cases on this issue fall

well within the clearly established law, upholding employer actions where the employees were

not required to give up constitutional protections in order to keep their employment. See Wood

v. Summit Cnty. Fiscal Office, 377 F. App’x 512, 515 (6th Cir. 2010) (finding no Fifth

Amendment violation where plaintiff was terminated after he declined to attend a disciplinary

hearing even though he had been informed he would not be required to waive his Fifth

Amendment privilege); Lingler v. Fechko, 312 F.3d 237, 239-40 (6th Cir. 2002) (finding no

Fifth Amendment violation where police chief exacted statements from officers because there

was no evidence police officers had been required to waive privilege against selfincrimination).

Plaintiffs contend that Duchane and Bartok did exactly what was clearly disallowed by

Uniformed Sanitation Men and Gardner: forced Plaintiffs to surrender either their constitutional

rights or their jobs. However, what actually transpired—taking Plaintiffs’ version of the facts

as we must—is a step removed. In order to gain access to the water meters, Bartok and White

acted pursuant to a sliding scale: (1) they asked permission to inspect the meter, (2) they

informed the occupant that a city ordinance gave the city the right to inspect the meter, and

(3) Bartok gave a direct order as Plaintiffs’ supervisor to show them the meter. Where the

employee continued to refuse access, as Clemente and Dailey did, Bartok and White respected

his Fourth Amendment rights and left. What is clearly established is only that public employers

may not coerce their employees to abdicate their constitutional rights on pain of dismissal, and

that is not what happened here.
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 13

Plaintiffs cite to an Eighth Circuit case, Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994),

which neither is controlling nor would clearly establish the law even were it from this Circuit

because it falls squarely within Uniformed Sanitation Men. There, a police officer who had a

possessory interest in a dog refused to give the dog to the police department until threatened

that he would be relieved of duty if he did not do so. The Eighth Circuit found that this was a

seizure within the meaning of the Fourth Amendment. Though the court remanded for a

determination on whether the warrantless seizure was justified by an exception, it noted, citing

to Uniformed Sanitation Men, that “the State may not coerce [public employees] into

relinquishing a constitutional guarantee under threat of losing their employment.” Lesher,

12 F.3d at 150. 

Defendants’ actual conduct highlights the blurriness of the Fourth Amendment’s

contours in the context of an employer-employee relationship. Bartok and White acted on a

gradient, applying more pressure at each step to obtain consent (simply asking, then citing to

a city ordinance, then giving a direct order as supervisor), but never forced Plaintiffs to choose

between letting them in or losing their jobs. Though we do not decide the issue, we note that

a supervisor’s direct order may be coercive in some situations, as it may be reasonable for an

employee to believe that disobeying it will result in termination. The question, however, is not

whether such conduct could possibly constitute a Fourth Amendment violation but whether,

according to settled Supreme Court and Sixth Circuit precedent at the time, such conduct was

so clearly violative of the Fourth Amendment that it is beyond debate. See al-Kidd, 131 S.Ct.

at 2083 (“We do not require a case directly on point, but existing precedent must have placed

the statutory or constitutional question beyond debate.”). Short of threatening termination,

what public employers could do to obtain an employee’s consent to conduct an inspection was

not clearly established. Duchane and Bartok are thus entitled to qualified immunity.

A Ninth Circuit decision came to the same conclusion in a somewhat analogous factual

scenario. Delia v. City of Rialto, 621 F.3d 1069, 1071 (9th Cir. 2010), rev’d on other grounds,

Filarsky v. Delia, — U.S. —, 132 S. Ct. 1657 (2012), involved a firefighter, Delia, who

obtained several off-duty work orders for medical reasons. The city became suspicious of

Delia’s frequent off-work status and retained a private attorney to investigate. At an
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 14

administrative interview, the attorney asked Delia if he was undertaking any home construction

projects, and Delia responded that he had purchased some rolls of insulation which were sitting,

still bagged, in his house. To verify that Delia was telling the truth, the attorney tried to obtain

Delia’s consent to allow a battalion chief to search his home for the rolls of insulation. Id. at

1072. Delia refused. The attorney next asked if Delia would go home and bring out the rolls

of insulation himself for inspection. Again, Delia refused. The attorney ultimately obtained

a written order from the fire chief ordering Delia to produce the insulation for inspection, to

which Delia complied. Id. at 1072-73. Delia subsequently filed a § 1983 suit claiming

violations of his Fourth Amendment rights. 

The Ninth Circuit held that this compelled search of Delia’s own home was a Fourth

Amendment violation. Id. at 1075. However, the court went on to note that “this case does not

fit neatly into any previous category of Fourth Amendment law” and decided that the right at

issue was not clearly established. Id. at 1078. After reviewing the Supreme Court’s decisions

in Uniformed Sanitation Men and Gardner, the court concluded: “Neither case involved the

legality of a search under the Fourth Amendment. Accordingly, neither Gardner nor

Uniformed Sanitation Men would have put defendants on notice that [the fire chief’s] order to

Delia, with no attendant threat to his employment, constituted a violation of the Fourth

Amendment.” Id. at 1079. Accordingly, the fire chief who ordered Delia to comply with the

inspection and the firefighters who carried it out were granted qualified immunity. Similarly,

Uniformed Sanitation Men and Gardner were not sufficient to put Duchane and Bartok on

notice that their progressive series of questions and orders, with no attendant threat of

termination, rose to the level of a Fourth Amendment violation.

C. Retaliation Claims of Dailey, Clemente, and Taylor

Plaintiffs Dailey and Clemente asserted their Fourth Amendment rights by requiring

Bartok and White to get a warrant. Plaintiff Taylor did not answer the door, but the district

court found that in the light most favorable to plaintiffs, Taylor could be seen as exercising his

Fourth Amendment right by purposely avoiding Bartok and White. Clemente, 2010 WL

4636250, at *7. The question regarding these Plaintiffs is whether they have raised a genuine
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 15

6

The elements of a retaliation claim and the burden-shifting framework are taken from cases

involving alleged retaliation for exercising First Amendment rights. Both parties agree that this framework

applies here, and we find no reason to analyze a retaliation claim grounded on the Fourth Amendment

differently from one grounded on the First. As Thaddeus-X demonstrated, the essential framework for

analyzing retaliation claims is consistent across different contexts, constitutional and statutory. 175 F.3d

at 386-87, 394.

issue of material fact sufficient to survive summary judgement on their claim that they were

terminated in retaliation for exercising their constitutional rights.

“[R]etaliation for the exercise of constitutional rights is itself a violation of the

Constitution.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (citing

Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)). This Circuit has outlined the basic

elements of a retaliation claim: “(1) the plaintiff engaged in protected conduct; (2) an adverse

action was taken against the plaintiff that would deter a person of ordinary firmness from

continuing to engage in that conduct; and (3) there is a causal connection between elements one

and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected

conduct.” Id.; see also Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). Once the plaintiff

meets her burden of establishing that her protected conduct was a motivating factor of the

adverse action, the burden of production shifts to the defendant to show, by a preponderance

of the evidence, that she would have taken the same action regardless of plaintiff’s protected

activity. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).6

Steps 1 and 2 are not disputed. The district court determined that Plaintiffs did not

establish a genuine issue of material fact on whether their exercise of Fourth Amendment rights

caused the termination, thus failing to meet their burden under Step 3.

Plaintiffs offer the following as evidence of a causal connection between their

termination and their assertion of their Fourth Amendment rights: (1) the water usage study was

incomplete and unreliable; (2) not all DPS employees with water use under 71 units were

investigated; and (3) Martin Ladd’s opinion was inconclusive as to whether Plaintiffs’ meters

had been tampered with. In Plaintiffs’ reply brief, they add the fact that (4) the notices of

Plaintiffs’ disciplinary hearings listed disobeying a direct order as one incident of misconduct.
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 16

Reasons (1) and (2) have no bearing on the retaliation claim because the water usage

study and decision to investigate certain but not all DPS employees with less than 71 units of

water usage occurred before Dailey, Clemente, and Taylor ever asserted their Fourth

Amendment rights. Pointing to the deficiencies in the process leading up to the investigation

is simply an attempt to contest the merits of the adverse employment decisions cloaked in the

guise of a Fourth Amendment claim.

Neither do (3) and (4) establish a causal link. Ladd’s testimony applies to Brian

DePalma as well, who did not assert his Fourth Amendment rights, and the virtually identical

notices of hearing apply to all Plaintiffs; thus, it is unclear how these two pieces of evidence

show specifically that Clemente, Dailey, and Taylor were terminated in retaliation. Again,

Plaintiffs seem to be contesting the correctness of their terminations rather than connecting their

terminations specifically to their assertion of Fourth Amendment rights.

Further, even assuming Plaintiffs could show a causal connection, Defendants have met

their burden to show that they “would have reached the same decision . . . even in the absence

of the protected conduct.” Mt. Healthy, 429 U.S. at 287. While this “burden involves a

determination of fact and ordinarily is reserved for a jury or the court in its fact-finding role,”

Rodgers v. Banks, 344 F.3d 587, 603 (6th Cir. 2003) (internal quotation marks omitted), here,

a remand is unnecessary to determine whether Defendants would have terminated Plaintiffs

even had they acquiesced to White and Bartok’s orders. The terminations of Plaintiffs who did

not assert their Fourth Amendment rights—Stol, Ray, Werksma, and DePalma—answer in the

affirmative. We find it abundantly clear that, rightly or wrongly, Plaintiffs were terminated for

reasons related to the water usage study and meter inspection, not for asserting their Fourth

Amendment rights.

Though Plaintiffs claim that Duchane attributed Clemente, Dailey, and Taylor’s

assertion of rights to all of them, we find this the sort of “mere speculation, conjecture, or

fantasy” insufficient to survive a motion for summary judgment. Lewis v. Philip Morris Inc.,

355 F.3d 515, 533 (6th Cir. 2004) (internal quotation marks omitted). And, in any event, such

claim is contradicted by Plaintiffs’ termination letters, which were individualized. We agree

with the district court that “[e]ven in a light most favorable to Plaintiffs, the record evidence
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 17

7

We note that Brian DePalma’s claimed right is more accurately grounded on the freedom of

intimate association, which is protected as a fundamental liberty interest arising under the Fourteenth

Amendment’s Due Process Clause, rather than on the First Amendment’s free speech, assembly, and

petition rights. See generally Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984); Moore v. City of East

Cleveland, 431 U.S. 494 (1977); Johnson v. City of Cincinnati, 310 F.3d 484, 498-99 (6th Cir. 2002). In

any event, DePalma has failed to establish any causal connection between his family relationship and

termination.

8

Even if this reason is unsatisfactory, as DePalma asserts, DePalma has still failed to show that

his investigation and termination were motivated by his relation to Ronald rather than his low water usage

and other evidence of tampering with his meter.

indicates that they were terminated for cause—not in retaliation.” Clemente, 2010 WL

4636250, at *7.

D. Retaliation Claim of DePalma

Plaintiff Brian DePalma alleges that Defendants violated his First Amendment right to

freely associate by terminating his employment because of his relationship with his brother,

Ronald DePalma, who admitted to tampering with his water meter.7 It is undisputed that

DePalma has a constitutional right to associate with members of his family, see Johnson v. City

of Cincinnati, 310 F.3d 484, 498-99 (6th Cir. 2002), and that his termination was an adverse

action. However, DePalma has failed to put forth any evidence upon which a reasonable

factfinder could find a causal connection between his familial relationship and his termination.

To show such a connection, DePalma points to the fact that he was not a subject of

investigation until after his brother Ronald admitted to tampering with his own meter. While

true that Brian DePalma was not visited on June 30 like the other Plaintiffs and was not

investigated until a search warrant was executed at his home on July 14, this does not support

an inference that Brian DePalma was investigated (and subsequently fired) because of his

relationship to Ronald.

Duchane had cause to suspect Brian DePalma of tampering with his meter prior to July

14, as the water usage compilation showed that he was the ninth lowest consumer out of all the

surveyed active city employees. Duchane responded appropriately by obtaining a warrant and

seizing his meter. Duchane testified that he, Bartok, and White decided to skip over Brian

DePalma’s house on June 30 because Ronald DePalma was on the list as well, and they thought

Ronald would immediately warn Brian about the visit.8

 Bartok reported that Ladd found that
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 18

9

Schaffer was also among the nine lowest users and treated similarly to DePalma in that he was

not visited on June 30 but investigated later on July 14 pursuant to a search warrant.

the security pin in Brian DePalma’s meter was “hastily put in” and that it appeared to have been

pushed in and out a number of times. DePalma’s termination letter relied on these findings, as

well as the circumstantial evidence of his historically low water usage. As the district court

correctly found, both brothers independently met the criteria to be suspected of meter tampering

and terminated.

DePalma attempts to show that he was treated differently from similarly situated

employees to support an inference of retaliatory animus: he claims that his water usage was

greater than two other active city employees whose homes were not searched, Michael Schaffer

and Brian Keene. First, DePalma’s claims are factually false. Mike Shaffer’s home was, in

fact, visited and his meter seized on July 14.9

 And DePalma’s usage was not greater than

Keene’s but the same (both 71 units). Secondly, upon closer examination, Schaffer and Keene

are not actually similarly situated to DePalma. Schaffer, for one, was found not to have

tampered with his meter. Keene, Duchane explained, was not investigated despite having the

same usage as DePalma because Keene was not part of DPS and Duchane wanted to start with

the nine DPS employees who were at the bottom of the water usage study.

Regardless of whether Duchane’s explanations are satisfactory, DePalma has simply

failed to present any evidence from which a reasonable jury could conclude that his

investigation and termination was motivated by his familial relationship, rather than his low

water usage or status as a DPS employee. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249-50 (1986) (“[T]here is no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable

or is not significantly probative, summary judgment may be granted.” (citations omitted)).

E. Municipal Liability 

The City of Lincoln Park argues that Plaintiffs abandoned their claims against the City

because the claims were not set forth in Plaintiffs’ opening appellate brief. We agree. Plaintiffs

here made no mention of municipal liability in their opening brief, even though they were
No. 10-2506 Clemente, et al. v. Vaslo, et al. Page 19

clearly on notice that the district court decided the municipal liability issue against them and

that it was a proper issue for appeal. Their claims are thus abandoned. United States v.

Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006) (“[A]n appellant abandons all issues not raised

and argued in its initial brief on appeal.” (alteration in original) (internal quotation marks

omitted)).

Though Plaintiffs address the issue in their reply brief, “[w]e have consistently held . . .

that arguments made to us for the first time in a reply brief are waived.” Sanborn v. Parker,

629 F.3d 554, 579 (6th Cir. 2010). Further, even if had they raised their argument at the

appropriate time, we would find it waived on grounds that it is “adverted to . . . in a perfunctory

manner, unaccompanied by some effort at developed argumentation.” Langley v.

DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (internal quotation marks omitted).

Plaintiffs’ municipal liability argument consists of a conclusory allegation that Duchane is a

policymaker, the incorrect assertion that whether Duchane is a policymaker is a question of fact

for a jury, see Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (“[T]he identification

of those officials whose decisions represent the official policy of the local governmental unit

is itself a legal question to be resolved by the trial judge before the case is submitted to the

jury.”), and recitations of facts attempting to establish each Plaintiff’s innocence of meter

tampering irrelevant to the question of municipal liability. Even were we to consider Plaintiffs’

belated argument, they have given us nothing to consider.

III. CONCLUSION

Plaintiffs have abandoned their claims against Defendant Vaslo and the City of Lincoln

Park. On all other issues, we AFFIRM the judgment of the district court.