1

The other named Defendants in this lawsuit are Jim Ellison (Mayor of Royal Oak), Tom

Hoover (City Manager of Royal Oak), Mary Jo DiPaolo (Director of Human Resources for

Royal Oak), and C. Brian James (Former Assistant City Attorney for Royal Oak). 

1

UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BEN UPTON,

Plaintiff,

v. Case Number: 08-13995

Honorable Julian Abele Cook, Jr.

CITY OF ROYAL OAK, JIM ELLISON, MAYOR

OF THE CITY OF ROYAL OAK, TOM HOOVER,

CITY MANAGER FOR THE CITY OF ROYAL OAK,

MARY JO DIPAOLO, DIRECTOR OF HUMAN 

RESOURCES, and C. BRIAN JAMES, FORMER 

ASST. CITY ATTORNEY FOR THE CITY OF ROYAL

OAK, Jointly and Severally,

Defendants.

______________________________________________/

 

ORDER

This is a case in which the Plaintiff, Ben Upton, has accused the Defendants, the City of

Royal Oak (Michigan) (“the City”), et al.,1 of (1) wrongfully retiring him from his employment as

a municipal firefighter in violation of his fundamental rights under the First and Fourteenth

Amendments to the United States Constitution, and (2) engaging in a civil conspiracy which was

designed to force him into retirement. Currently pending before the Court is the Defendants’

collective motion for entry of a summary judgment as to Upton’s claims. 

I.

The Plaintiff, Ben Upton, joined the City’s fire department (“Department”) as a firefighter
2

in February of 1992. Upton claims that within four years of his hiring, he became the president of

the firefighters’ union. He also alleges that his union sought to have the residents of the City to vote

on a ballot initiative in November of 2004 which, if approved by them, would have required the

employment of additional municipal firefighters. According to Upton, the issue was hotly debated

by members of the City Commission, and generated a considerable amount of discussion about this

issue and other municipal concerns, such as the possible need to eliminate some City jobs if the

ballot initiative passed. Although the record is silent as to whether the proposal actually passed, it

is Upton’s belief that he was fired in retaliation for his advocacy role in connection with the ballot

proposal.

 A.

Upton contends that he woke up one morning in February of 2004 with a severe neck pain.

After a magnetic resonance imagining test (“MRI”) was taken, he was urged by his examining

physician to attend physical therapy sessions for relief. Several months later (June 8, 2004), Upton

slipped and fell from a fire truck which resulted in injuries to his elbow, shoulder, and neck. 

According to Upton, he was examined by at least four doctors and a physical therapist

between December of 2004 and August of 2005. During the later part of December in 2004, Upton

was referred to Dr. Charles Xeller, who ultimately concluded that he could return to work without

any restriction. Upton claims that upon reporting for work (on a date that has not been identified in

the pleadings), he was sent him home because of his continuing need for narcotic pain medication.

He eventually returned to work on May 4, 2005 with the approval of his own physician, Dr. Robert

Ho. However, Upton’s work status was dramatically changed on May 31, 2005 when, during a

regular check up, Dr. Ho advised him to permanently refrain from lifting more than thirty-five (35)
3

pounds. On the following day, Upton was sent home by his employer who, after being told of Dr.

Ho’s “permanent restriction” admonition, allegedly told Upton that he could not work with such a

weight restriction in place. But, during the following month (June 25, 2005), Upton’s personal

neurosurgeon, Dr. Kanwaldeep Sidhu, issued a note to him which indicated that he could return to

work without any restrictions. In late July of 2005, the Defendants directed Upton to participate in

a functional capacity test to assess his physical fitness for returning for work. The physical therapist

determined that Upton would be a good candidate for participating in a “work hardening program”

which was designed to increase his overall strength. On August 4, 2005, the Defendants sent Upton

for another medical examination by an orthopedic surgeon, Dr. Philip Mayer, who ultimately

concluded that he could return to work without any restrictions. 

The Defendants contend that Upton insisted on being given a light duty assignment while he

underwent the “work hardening program” that had been recommended by the physical therapist.

However, complications arose when, according to the Defendants, the City’s insurance carrier refused

to pay for Upton’s participation in the “work hardening program” because there were no guarantees

that he would be able to fully return to work. 

 B.

According to the Defendants, Upton never returned to full duty, but worked intermittently on

injury leave, light duty, and/or sick leave. Although Department policy limited light duty to a sixty

day period, the Defendants concede that Upton remained on light duty status from July 28, 2004

through December of 2004. Thereafter - beginning on February 2, 2005 - the Defendants allege that

Upton began using sick days to cover his work absences. After exhausting his sick pay hours, Upton

used the time that had been donated to him by other Department employees. When that bank of sick
4

time ran out, Upton remained on leave without pay and without income. 

In June of 2005, Upton accepted the Defendants’ offer for him to work as a dispatcher at the

Royal Oak Police Department. However, Upton maintains that the City changed course and told him

that the position was no longer available. Although the Defendant, Mary Jo DiPaolo, as the Director

of the City’s Human Resources, acknowledges that the dispatcher job offer was withdrawn, she

maintains that this administrative decision was made out of a genuine concern that (1) the process

of offering the position exclusively to Upton - and disregarding other potential candidates - violated

civil service rules, and (2) the dispatcher job was not within the same bargaining unit as the

firefighter position.

As an alternative proposal, the Defendants offered Upton a part-time, non-union position as

a Code Enforcement Officer. But Upton rejected this offer because, in his opinion, the dispatcher

position was an “at-will” job. According to Upton, the City was going through layoffs at the time,

and his acceptance of the City’s offer would have subjected him to being terminated without

recourse.

 C.

The Defendants posit that because Upton (1) could not perform the duties of a firefighter

based on Dr. Ho’s weight restrictions, and (2) had exhausted all of his available light duty, the City

asked its Retirement Board to place him on disability retirement pursuant to Section 47A of the

Firefighters’ Collective Bargaining Agreement. According to Upton, he was first notified of the

City’s application to place him on disability retirement around September 14, 2005. A meeting of

the Retirement Board was held one week later on September 21, 2005.

Upton says that the Defendants only presented the Retirement Board with selective medical
2

Although it is not a formal element of his complaint, Upton also notes that the entire

September 21, 2005 Retirement Board Meeting - which was open to the public and included the

participation of people such as his former wife - violated his right to the privacy of his health

information, as protected by the federal Health Insurance Portability and Accountability Act

(HIPAA).

5

records, and improperly excluded the June 30, 2005 letter from Dr. Sidhu.2

 He also claims that the

Defendants never gave him a copy of the packet that had been made available to the Retirement

Board. Furthermore, Upton submits that he asked the members of the Retirement Board to permit

him to undergo the work hardening program so that he could return to work. For reasons that were

voiced during the meeting, his proposed solution was not adopted. 

At the conclusion of the meeting, the Retirement Board concluded that Upton was disabled

and placed him on a non-duty disability status because, in its judgement, his disability (1) predated

the fall on June 8, 2004 and (2) was not related to his work as a firefighter. According to Upton, this

distinction is significant, inasmuch as a duty disability pension would have paid him 66% of his

annual salary, plus a lifetime of medical benefits. By contrast, he asserts that a non-duty disability

pension pays a pension-recipient less than $12,000 per year and limits medical insurance coverage

to a period of five years.

 D.

While the retirement issue was pending, Upton also filed a worker’s compensation claim

against the City which he contends was managed by DiPaolo and Donna Hart, a claims adjuster from

the Citizens Insurance Company. He points to Hart’s testimony and written notes which (1) allegedly

expressed her hopes that the Retirement Board would give Upton a “regular retirement,” because any

other decision would “certainly hurt [their] WC case . . . ,” (2) reflect her observation that “the [C]ity

wants to push [Upton] into a disability retirement,” and (3) identify a desire by the City to challenge
6

Upton’s claims because of a pre-existing medical condition. 

On May 9, 2009, an administrative law judge, who had reviewed Upton’s workman’s

compensation claim, ordered the City to pay benefits to him. In rendering his findings and

conclusions, he found that (1) the the Retirement Board had a strong financial incentive for finding

Upton’s disability to be unrelated to his work, and (2) the decision to selectively utilize Dr. Ho’s

medical opinions to the City’s advantage was “arbitrary and capricious” 

 II.

Under Federal Rule of Civil Procedure 56(c), a motion for a summary judgment should be

granted if a party “show[s] that there is no genuine issue as to any material fact and that [it] is entitled

to a judgment as a matter of law.” One of the principal purposes of the summary judgment rule is

to isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp. v. Catrett,

477 U.S. 317, 323–24 (1986). In bringing such a motion, the movant bears the burden of

demonstrating the absence of a genuine issue of a material fact. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). 

The Sixth Circuit Court of Appeals has urged all district courts to examine any pleadings,

depositions, answers to interrogatories, admissions, and affidavits in a light that is most favorable to

the nonmoving party when such a dispositive motion is under consideration. Fed. R. Civ. P. 56(c);

Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991). It is the responsibility of the Court to

determine “whether . . . there are any genuine factual issues that properly can be resolved only by a

finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S.

at 250. 

 

 A.
3

Title 42 U.S.C. § 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 . . . 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 . . .

.

4

A public employee’s speech is constitutionally protected when it addresses a matter of

public concern, and his/her interest in making such statements outweighs the “interest of the

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

employees.” Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

7

To establish a claim against the Defendants, Ellison, Hoover, DiPaolo, and James under 42

U.S.C. § 1983, Upton must prove that they deprived him of a constitutional or federal statutory right

while acting under the color of law.3

 See Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978);

Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir.1995). Here, the Defendants concede that they acted

under the color of state law during all of times that are relevant to this litigation. Nevertheless, it is

their collective belief that Upton cannot produce any facts which would establish a violation of his

First or Fourteenth Amendment rights. 

(i) § 1983 Claim Arising out of Alleged Violations of Upton’s First Amendment Rights

In order to sustain a 42 U.S.C. § 1983 retaliation claim on the basis of the First Amendment,

a plaintiff must show that (1) he was engaged in a protected speech4

 (2) an adverse action was taken

against him which would deter a person of ordinary firmness from continuing to engage in the alleged

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

conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999). 

Here, the Defendants acknowledge that for the purposes of this motion, Upton’s speech
8

relating to the ballot initiative was constitutionally protected because it addressed a matter of public

concern. However, the Defendants submit that Upton cannot show that the decision to retire him was

motivated by an exercise to eliminate or minimize his right to free speech. While the Defendants

acknowledge that causation is ordinarily a question of fact, it is their belief that the undisputed

evidence shows that the challenged retirement was implemented because of the thirty-five pound

weight restriction that had been imposed Upton by Dr. Ho. 

To support their position, the Defendants note that the City had returned Upton to full-time

employment as a firefighter in May of 2005 - an authorization that continued until May 31, 2005

when his work restriction was extended by Dr. Ho. Moreover, they argue that - although it was not

obligated to do so - the City made several attempts to place Upton in alternate employment. The 

Defendants also note that Upton’s retaliation claims are undermined by the passage of more than one

year between the alleged protected activities (which occurred in May and June of 2004), and the

adverse employment action in September of 2005.

In his effort to rebut the Defendants’ argument, Upton argues that when viewed in a light most

favorable to him as the non-moving party, the following facts establish genuine issues of a material

fact regarding the question of causation: 

(1) Prior to his retirement, three different doctors believed that he could return to work

without restrictions, and, further, a physical therapist believed that he would be a good

candidate for a “work hardening program” to strengthen his tolerance for work related

activities; 

(2) Despite these medical findings, the Defendants failed to provide him with an

acceptable work alternative; 

(3) The insurance adjuster, who handled his worker’s compensation claim, made several

statements that the Defendants were intent on pushing him into a non-duty disability

retirement; 
9

(4) In their appearance before the Retirement Board, the Defendants strongly argued that

the work hardening program was not a reasonable option; 

(5) The Defendants resolved a separate First Amendment retaliation claim that he had

filed against one of the Defendants, C. Brian James,

 (6) The Defendants were content to violate Upton’s privacy by discussing his medical

history at a public meeting;

(7) Another Defendant, Mary Jo DiPaolo, withheld a packet of information from the

Retirement Board on September 21, 2005;

(8) The Defendant, C. Brian James, advised the City’s Civil Service Commission that

Upton’s retirement decision could not be appealed; and

(9) The time lapse between his protected activity and his forced retirement occurred

between November 2004 and September of 2005.

Upton’s arguments are unavailing. He devoted scarce time in his pleading to describing the nature

of his allegedly protected speech; however, none of his reasons pointed to a causal connection

between his speech and his forced retirement. Upton correctly notes that the Defendants have taken

inconsistent positions with regard to their belief in his disability status. But, standing alone, that fact

says nothing about whether they harbored a discriminatory animus against him based on his protected

speech. Upton points to no documentary or testimonial evidence to show that his forced retirement

was motivated in any way by his First Amendment activity. At the summary judgment stage, Upton

cannot rest upon mere supposition to sustain his burden. Accordingly, the Court finds that Upton has

failed to support the claim that his First Amendment rights had been violated.

(ii) § 1983 Claim Arising out of Alleged Violations of Upton’s Fourteenth Amendment Due 

Process Rights

To prevail on his due process claim, Upton must show that, as a public employee with a

constitutionally protected property interest in his employment, he was discharged from his job, and

that prior to being discharged, he was not given (1) any oral or written notice of the charges against
10

him, (2) an explanation of the employer’s evidence against him, or (3) an opportunity to present his

side of the story on the contested issues. Molina-Crespo v. U.S. Merit Systems Protection Bd., 547

F.3d 651, 661 (6th Cir. 2008) (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 542,

546 (1985)). 

Here, the Defendants cite Upton’s testimony wherein he acknowledged his receipt of the letter

from DiPaolo in which she informed him that his retirement would be discussed at the meeting of the

Retirement Board on September 21, 2005. They also assert that he took advantage of the opportunity

to explain his position to the Retirement Board. Based on these facts, they proclaim that Upton

received all the due process to which he was entitled under Loudermill.

In response, Upton emphatically denies these assertions by the Defendants. Characterizing

the Retirement Board meeting as “a trial by ambush,” it is Upton’s position that he was completely

unaware of the evidence that the City would attempt to present, and argues that copies of the

documents which were presented to the Retirement Board during the hearing were not received by

him until two weeks later. He further notes that the City took a different position before the Workers’

Compensation Bureau, where it claimed that Upton was not disabled and was, therefore, eligible to

return to work.

After reviewing the record, the Court accepts as true the Defendants’ assessment. Upton’s

arguments constitute, in the main, conclusory refutations and accusations of the Defendants’ claims.

Yet, as the Defendants note, it is clear that Upton (1) acknowledged having received the letter from

DiPaolo about the then-upcoming meeting, and (2) had an opportunity to present his side of the story

to the Retirement Board. While it may be true that the Defendants did not provide Upton with the

formal packet of material until after the hearing, it is equally apparent that those documents consisted
11

almost exclusively of Upton’s medical records, to which he would presumably have had knowledge

(and access) well in advance of the September 21, 2005 meeting. Inasmuch as Upton has failed to

show that he was denied any of his rights under Loudermill, the Court finds that he has not

established a violation of 42 U.S.C. § 1983 based on a deprivation of his Due Process rights.

 B.

Claims under Section 1983 are limited by the doctrine of qualified immunity, which is a

protection that “extends to government officials performing discretionary functions.” Blake v. Wright,

179 F.3d 1003, 1007 (6th Cir. 1999). In 1982, the Supreme Court crafted the qualified immunity

doctrine to protect public officials “from undue interference with their duties and from potentially

disabling threats of liability. Harrlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Thus, government

officials, while acting in their official capacities, are immune from personal civil liability as long as

their actions “do not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Id. at 818; see also Anderson v. Creighton, 483 U.S. 635, 639

(1987). Moreover, a government employee will be shielded from liability if he acted under an

objectively reasonable belief that his actions were lawful. Ahlers v. Schebil, 188 F.3d 365, 372-73

(6th Cir. 1999). Although the Defendants bear the initial burden of asserting the defense of

qualified immunity, Upton must ultimately demonstrate that this doctrine is not applicable under the

circumstances of the case at hand. Williams v. Payne, et al., 73 F. Supp. 2d 785, 795, (E.D. Mich.

1999), citing Blake at 1007. In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court

mandated a two-step sequence for resolving government officials’ qualified immunity claims. First,

a court must decide whether the facts that have been shown by a plaintiff create a violation of a

constitutional right. Id. The purpose of this prong is to “ensure that defendants ‘reasonably can
12

anticipate when their conduct may give rise to liability’. . . . ” Williams, supra, citing United States

v. Lanier, 520 U.S. 259, 270 (1997). Second, if a plaintiff has satisfied this first step, the court must

decide whether the right at issue was “clearly established” at the time of the defendant's alleged

misconduct. Id.; But see, Pearson v. Callahan, 129 S.Ct. 808, 816 (2009) (Saucier’s two-step

procedure for evaluating qualified immunity claims is no longer mandatory, and leaves it to the

discretion of the Court to decide which of the two prongs to address first).

Here, there is no evidence that the Defendants’ acts violated any clearly established law

involving the First or the Fourteenth Amendment. As noted above, Upton has failed to produce any

data from which a fact finder could reasonably conclude that the Defendants (1) retaliated against him

based on his constitutionally protected speech, or (2) denied him due process of law. Thus, the

inquiry of the Court could end here. Saucier, supra at 201 (“If no constitutional right would have

been violated were the allegations established, there is no necessity for further inquiries concerning

qualified immunity.”). Yet, even if the Court had found that such a violation had occurred, the

Defendants correctly note that Upton has not established that it would have been clear to any

reasonable public official that his or her actions in forcing him into a non-duty disability retirement

violated the First or Fourteenth Amendment. In theory, all public officials should know that it is

impermissible to deny employees of due process or to retaliate against them for asserting their First

Amendment rights. However, as the Defendants point out, this inquiry must be more specific.

Saucier at 201 (a court must evaluate the second prong “in light of the specific context of the case,

not as a broad general proposition.”). While the circumstances which surround the Defendants’

conduct may seem a bit suspect and their explanations may also seem to be inconsistent, the facts

here - as alleged and proven thus far - are not actionable on the particular theories raised by Upton
5

Moreover, Upton’s reliance on Habel v. Township of Macomb, No. 06-1491, 258 Fed.

Appx. 854 (6th Cir. 2007) is completely misplaced because there, it was clear that (1) the

plaintiffs had engaged in extensive First Amendment protected activity, and (2) there was a

significant factual question as to whether the plaintiffs had drawn swift and severe discipline

from the defendant fire department in very close proximity to engaging in protected speech. 

Neither the nature of the plaintiff’s speech, nor of the defendants’ response here comes close to

the facts at issue in Habel.

13

in the first two counts of his complaint. Thus, the individual Defendants are entitled to qualified

immunity from liability on these counts.5

 C.

Under Michigan law, the essential elements of a civil conspiracy are (1) the existence of a

concerted action (2) by a combination of two or more persons (3) to accomplish an unlawful purpose

(4) or a lawful purpose by unlawful means. Mays v. Three Rivers Rubber Corp, 135 Mich. App 42,

48 (1984). Upton’s claim must fail based on the intra-corporate conspiracy doctrine, which provides

that a corporation cannot conspire with its own agents or employees. Doherty v. American Motors

Corp., 728 F.2d 334, 339 (1984). Where all of the defendants are members of the same collective

entity, the law does not recognize the existence of two separate “people” to form a conspiracy. Hull

v. Cuyahoga Valley Joint Vocational School Dist. Board of Education, 926 F.2d 505, 510 (6th Cir.

1991) (applying intra-conspiracy doctrine to a school district superintendent, the executive director

of the district, and a school administrator, all of whom were employees or agents of the Board).

Upton does not address this argument in his responsive brief, and, thus, he - by virtue of his silence -

has defaulted on this issue. All of the individually named Defendants work as employees or agents

of the City of Royal Oak. As such, under Doherty, and similar precedent, they all belong to one

collective entity and thus cannot form a conspiracy with one another. The Defendants are therefore
14

entitled to a summary judgment on this count of Upton’s complaint.

 D.

Municipal liability cannot be imposed under 42 U.S.C. § 1983 unless injuries are inflicted

against a person pursuant to a policy or custom. Monell v. Department of Social Services of City of

New York 436 U.S. 658, 694 (1978) (a local governmental entity may be responsible under § 1983

only when harm arises out of the “execution of a government's policy or custom, whether made by

its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. . . .”).

To satisfy Monell, a plaintiff must “identify the policy, connect the policy to the city itself and show

that the particular injury was incurred because of the execution of that policy.” Coogan v. City of

Wixom, 820 F.2d 170, 176 (6th Cir.1987), overruled on other grounds by Frantz v. Vill. of Bradford,

245 F.3d 869, 874 (6th Cir.2001).

Upton correctly notes that liability may be imposed upon a municipality for a single decision

by a policymaker. Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). Under this theory,

Upton points to provisions in the Royal Oak City Charter which grant executive rule making

authority to the law department and the City Manager. Then, looking to the scope of their power as

municipal executives, Upton claims that the Defendants, James and Hoover, exposed the City to

liability as the result their comments about the probability of losing its worker’s compensation case.

Unfortunately, Upton’s argument on this issue is confusing and somewhat convoluted. Because this

issue was not properly briefed and analyzed – and he has not presented any persuasive argument or

authority to rebut the Defendants’ argument – the motion for a summary judgment in favor of the
6

In light of this ruling, the Court declines to consider the City’s final alternative argument

that Upton’s tort claims are barred by the doctrine of governmental immunity, particularly to the

extent that his response depends entirely on his now-refuted allegation that Defendants Hoover,

Ellison, DiPaolo and James committed intentional torts by acting outside the scope of their office

“when they determined to terminate [his] employment in violation of his rights secured under the

First Amendment . . . and denied him due process which is otherwise required under the

Fourteenth Amendment . . . .”

15

City on this ground will be granted.6 

Finally, the Defendants properly note that because the individual officers are not liable (based

on the foregoing analysis), the municipality cannot be liable. In this regard, even Upton concedes

that “if the [C]ourt were to dismiss the claims against the named Defendants, then [he] does not have

a cause of action against the [C]ity individually.”). Although he submits that the City’s motion for

a summary judgment may be premature, he makes no factual or legal argument as to why the Court

should defer its ruling on this aspect on the Defendants’ motion. Thus, his request will be denied.

III.

For the reasons that have been stated above, the Court grants the Defendants’ motion for

summary judgment in its entirety.

IT IS SO ORDERED

Dated: September 22, 2010 s/Julian Abele Cook, Jr. 

Detroit, Michigan JULIAN ABELE COOK, JR.

 United States District Court
16

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective

email addresses or First Class U.S. mail to the non-ECF participants on September 22, 2010.

s/ Kay Doaks 

Case Manager