1

 The Court originally scheduled this matter for hearing. Upon review of the

parties’ papers, however, the Court finds that oral argument is not necessary. See E.D.

Mich. LR 7.1(e)(2).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS A. O’CONNOR,

Plaintiff,

Case No. 09-10792

-vs- HON. AVERN COHN

REDFORD TOWNSHIP

and

TRACY SCHULTZ KOBYLARZ,

Defendants.

 /

MEMORANDUM AND ORDER

DENYING IN PART AND GRANTING IN PART

DEFENDANTS’ MOTION TO DISMISS1

I. INTRODUCTION

This is a wrongful discharge case. Plaintiff Thomas A. O’Connor (O’Connor) is

suing defendants the Township of Redford, Michigan (Township), and Township

Supervisor Tracey Schultz Kobylarz (Kobylarz) for terminating him as Director of

Constituent Services. The complaint is in two counts: One, Violations of O’Connor’s

First Amendment Rights under 42 U.S.C. § 1983; and Two, Violation of Public Policy

under Michigan Law. Before the Court is defendants’ motion to dismiss. For the

reasons that follow, the motion is DENIED as to Count One and GRANTED as to Count

Two.

II. BACKGROUND

O’Connor began his employment with the Township in 1999. For the last five

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years of his employment he served as Director of Constituent Services. O’Connor

campaigned for the reelection of incumbent Redford Township Supervisor Miles Handy

(“Handy”). Kobylarz defeated Handy and became the new Township Supervisor.

O’Connor says that after assuming the position of Township Supervisor, Kobylarz

made it known to him that his job, as Director of Constituent Services, was in jeopardy

because of his activities in support of Handy. O’Connor further alleges that Kobylarz

asked him to use his friendship and alliances with members of the Township Board of

Trustees to get her initiatives passed, but he refused. O’Connor asserts that he also

refused Kobylarz’s request to ask Michigan State Representative Andy Dilllon to extend

her an invitation to attend Governor Jennifer Granholm’s State of the State Address,

and his refusal infuriated her. On February 5, 2009, O’Connor’s employment with the

Township was terminated. 

In the first amended complaint O’Connor claims, inter alia, that he was illegally

terminated by the Township for exercising his First Amendment rights. Defendants say

that O’Connor has failed to state a claim on which relief can be granted because (1)

O’Connor’s job was inherently political and he was therefore not entitled to keep his

position after Kobylarz defeated her opposing candidate to be elected Township

Supervisor, (2) Defendants are entitled to qualified immunity from O’Connor’s 42 U.S.C.

§ 1983 claims, and (3) O’Connor failed to state a claim for wrongful discharge in

violation of public policy. 

III. LEGAL STANDARD

A Fed. R. Civ. P. 12(b)(6) motion seeks dismissal for a plaintiff’s failure to state a

claim upon which relief can be granted. When considering a motion to dismiss under

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Fed. R. Civ. P. 12(b)(6), a district court must construe the complaint in the light most

favorable to the plaintiff and accept all factual allegations as true. Morgan v. Church’s

Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987). “But the district court need not accept a

bare assertion of legal conclusions.” Tackett v. M&G Polymers, USA, LLC, 561 F.3d

478, 488 (6th Cir. 2009). The purpose of Rule 12(b)(6) is to ensure that as a matter of

law, if everything alleged in the complaint is true, the plaintiff is entitled to legal relief. 

Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). While Fed. R. Civ. P. 8(a)(2) does

not require a complaint to set out detailed factual allegations, in order for a complaint to

survive a Rule 12(b)(6) motion to dismiss, the complaint must present (1) “enough facts

to state a claim to relief that is plausible on its face,” (2) “more than a formulaic

recitation of a cause of action’s elements,” and (3) allegations that suggest a “right to

relief above a speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544

(2007).

IV. ANALYSIS

A. Violation of First Amendment Rights

“To state a claim under [42 U.S.C.] § 1983, a plaintiff must allege a violation of a

right secured by the Constitution and laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.” West v.

Atkins, 487 U.S. 42, 48 (1988). “The First Amendment protects political association as

well as political expression.” Buckley v. Valeo, 424 U.S. 1, 15 (1976). 

The United States Supreme Court has held that termination of a public employee

based on his or her political affiliation violates the First Amendment. Elrod v. Burns, 427

U.S. 347, 349 (1976) The Supreme Court has also recognized that an exception to this

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general principle exists when the position at issue is inherently political. Elrod, 427 U.S.

at 366 (1976); Branti v. Finkel, 445 U.S. 507, 517 (1980).

1. “Inherently Political”

Defendants say that O’Connor’s 42 U.S.C. § 1983 claim should be dismissed

because they did not violate his First Amendment rights when they terminated him. 

They say he was fired for budgetary reasons and that even if he had been fired for

supporting Kobylarz’s opponent, his position was “inherently political” and he was

therefore not entitled to the same First Amendment protections as other positions.

Defendants’ claim that O’Connor was fired for budgetary reasons rather than for

his political affiliation is an issue of fact for a jury. O’Connor’s claim states enough facts,

taken as true, to support a plausible claim that he was terminated for political reasons.

With respect to defendants’ claim that O’Connor’s position was inherently

political, the Supreme Court in Branti noted that it is difficult to tell whether a particular

position is inherently political. 445 U.S. at 518. The Court determined that “it is not

always easy to determine whether a position is one in which political affiliation is a

legitimate factor to be considered.” Id. Whether O’Connor’s position was inherently

political and thus falls under the Branti/Elrod exception is also an issue of fact that

should be determined by the jury. Assuming O’Connor’s claim that his position was not

inherently political is true, the claim is not subject to the Branti/Elrod exception and thus

suggests a right to relief above a speculative level.

2. Kobylarz and Qualified Immunity

Kobylarz says that she is entitled to governmental immunity and thus is protected

from O’Connor’s First Amendment claim. The defense of qualified immunity shields

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government officials from “liability for civil damages in so far as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

O’Connor says he was fired by Kobylarz because of his political affiliation with

her opponent. If this is true, Kobylarz violated his First Amendment rights by

terminating him for supporting the political candidate of his choice. Buckley, 424 U.S.

at 15. The right to support the political candidate of one’s choice is a well established

federal right. Id. Therefore, O’Connor has stated a plausible claim that would preclude

Kobylarz from governmental immunity.

3. The Township’s Liability

Defendants say that even if Kobylarz’s termination of O’Connor was illegal, the

Township has no liability because the injuries Kobylarz inflicted were not pursuant to

Township policy or custom. A municipality cannot be held liable under 42 U.S.C. § 1983

based on a respondeat superior theory. Monell v. N.Y. City Dep’t of Soc. Servs., 436

U.S. 658, 694 (1978). Municipal liability can be imposed only if the injuries are inflicted

pursuant to the municipality’s policy or custom. Id. To satisfy Monell, a plaintiff must

“identify the policy, connect the policy to the City and show that a particular injury was

incurred because of the execution of that policy.” Garner v. Memphis Police Dep’t, 8

F.3d 358, 364 (6th Cir. 1993). Under 42 U.S.C. § 1983, a municipality may be liable for

its authorized policymakers’ actions “where—and only where—a deliberate choice to

follow a course of action is made from among various alternatives by the official or

officials responsible for establishing final policy with respect to the subject matter in

question.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). A policymaker is

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the final authority if his or her “decisions are final and unreviewable and not constrained

by the official policies of superior officials.” Waters v. City of Morristown, 242 F.3d 353,

362 (6th Cir. 2001). “[W]here action is directed by those who establish governmental

policy, the municipality is equally responsible whether that action is to be taken only

once or to be taken repeatedly. To deny compensation to the victim would therefore be

contrary to the fundamental purpose of § 1983.” Pembaur, 475 U.S. at 481. 

In Pembaur, a physician’s clinic was indicted for fraudulently accepting payments

from state welfare agencies. Id. at 469. The supervisor of county deputy sheriffs told

them to follow the prosecutor’s instructions regarding the physician’s refusal to permit

them to enter the clinic and serve capiases on two employees. Id. The prosecutor gave

instructions to “go in and get” the employees; the deputies forcefully entered. Id. The

county argued that the prosecutor lacked authority to establish municipal policy

respecting law enforcement practices because only the sheriff could establish such

policy; thus, the prosecutor’s decision did not give rise to municipal liability. Id. at 484. 

However, the Supreme Court determined that because the sheriff and the prosecutor

could establish county policy regarding law enforcement matters under appropriate

circumstances and because the sheriff’s office referred the matter to the prosecutor and

then followed his instructions, in ordering the deputies to enter the clinic the prosecutor

was acting as the final decision maker for the county, and the county may therefore be

held liable under § 1983. Pembaur, 475 U.S. at 484–85. The Court held that “the policy

which ordered or authorized an unconstitutional act can be established by a single

decision by proper municipal policy makers.” Id. at 484 (emphasis added).

Thus, for example, the County Sheriff may have discretion to hire and fire

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employees without also being the county official responsible for establishing

county employment policy. If this were the case, the Sheriff’s decisions

respecting employment would not give rise to municipal liability, although similar

decisions with respect to law enforcement practices, over which the Sheriff is the

official policymaker, would give rise to municipal liability. Instead, if county

employment policy was set by the Board of County Commissioners, only that

body’s decisions would provide a basis for county liability. This would be true

even if the Board left the Sheriff discretion to hire and fire employees and the

Sheriff exercised that discretion in an unconstitutional manner; the decision to act

unlawfully would not be a decision of the Board. However, if the Board delegated

its power to establish final employment policy to the Sheriff, the Sheriff’s

decisions would represent county policy and could give rise to municipal liability.

Id. (emphasis added).

Defendants say that Kobylarz did not have the final authority to make the

decision to terminate O’Connor; rather, “[h]er decision to lay off the Plaintiff has to be

approved by the Township Board” (Board). O’Connor alleges that Kobylarz did not seek

approval from the Board. As in the example the Supreme Court gave in Pembaur, if the

Board delegated its power to establish final employment policy to Supervisor Kobylarz,

her decision would represent Township policy and could give rise to municipal liability. 

This is a question of fact.

Moreover, none of the published cases the Township cites was on a 12(b)(6)

motion to dismiss. City of St. Louis v. Praprotnik, 485 U.S. 112, 112 (1988) (went to

jury); Jett v. Dallas Indep. Sch. Dist. 491 U.S. 701, 701 (1983) (same); Monell, 436 U.S.

at 658 (1978) (summary judgment); Fox v. Van Oosterum, 176 F.3d 342, 344 (6th Cir.

1999) (same); Feliciano v. City of Cleveland, 988 F.2d 649, 652 (6th Cir. 1993) (same);

Garner, 8 F.3d at 360 (same).

The Township is correct that O’Connor did not specifically allege in his complaint

a governmental policy or custom of political discrimination. See Rayford v. City of

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Toledo, 1987 WL 36283 (6th Cir. Feb. 2, 1987). However, in light of Pembaur’s holding

that a single decision can establish policy and given the facts O’Connor has alleged,

there is enough to keep the Township in as a defendant at least through discovery. 

B. Violation of Public Policy

Generally, employment relationships are terminable at will, with or without cause,

“at any time for any, or no, reason.” Suchodolski v. Mich. Consol. Gas Co., 412 Mich.

692, 694-95 (1982). However, there are three exceptions to this general rule that apply

when “the discharge is so contrary to public policy as to be actionable though the

employment is at-will.” Id.; Edelberg v. Leeco Corp., 236 Mich. App. 177, 180 (1999). 

These exceptions apply when: 

(1) the employee is discharged in violation of an explicit legislative statement

prohibiting discharge of employees who act in accordance with a statutory right

of 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. 

The right to freedom of speech and press is clearly conferred by the Michigan

Constitution: “Every person may freely speak, write, express, and publish his views on

all subjects, being responsible for the abuse of such right; and no law shall be enacted

to restrain or abridge the liberty of speech or of the press.” Mich. Const. Art. I, § 5

(1963). 

O’Connor says that defendants violated public policy when they terminated him

for exercising his freedom of speech by endorsing the political candidate of his choice. 

Freedom of speech is clearly conferred by the Michigan Constitution. Accordingly,

O’Connor has stated a plausible claim based upon the third exception to the

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Suchodolski doctrine. 

However, a governmental agency is immune from tort liability if it is engaged in

the exercise or discharge of a governmental function. M.C.L. § 691.1407(1) (2009). “A

judge, legislator, and the elective or highest appointive executive official of all levels of

government are immune from tort liability . . . if he or she is acting within the scope of

his or her judicial, legislative, or executive authority.” § 691.1407(5). Courts have long

held that the hiring, supervision, and discipline of a government employee is the

exercise of a governmental function. Galli v. Kirkeby, 398 Mich. 527, 537 (1976). It is

also well established that a wrongful discharge claim in violation of public policy sounds

in tort. See Phillips v. Butterball Farms, Inc., 448 Mich. 239, 245–46 (1995).

In Mack v. City of Detroit, 467 Mich. 186, 197–203 (2000), the Michigan Supreme

Court held that because governmental immunity is a characteristic of government, the

party seeking to impose liability on the government has the burden of pleading in

avoidance of governmental immunity. “A plaintiff pleads in avoidance of immunity by

stating a claim that fits within a statutory exception or by pleading facts that demonstrate

that the alleged tort occurred during the exercise or discharge of a nongovernmental . . .

function.” Id. at 204. The Governmental Tort Liability Act (“GTLA”) enumerates six

exceptions to governmental immunity that permit a cause of action to be brought

against a governmental agency. M.C.L. § 691.1401 et. seq. The exceptions are

causes of actions pertaining to highways, motor vehicles, public buildings, proprietary

functions, governmental hospitals, and a sewage disposal event. Id.

In Thompson v. Wayne County Treasurer, 2008 WL 1986269, at *3 (Mich. Ct.

App. May 8, 2008), the Michigan Court of Appeals recognized a plaintiff’s claim of

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wrongful discharge in violation of public policy sounded in tort and determined that the

plaintiff’s claim did not fit within any of the statutory exceptions to governmental

immunity. The court held that because “only judicially recognized public policy, not

statute, recognizes retaliatory termination in general as an actionable tort, and because

that tort thus is not among the statutory exceptions to governmental immunity,

retaliatory termination . . . is not actionable against a governmental agency.” Id.

Additionally, it determined that retaliatory discharge in violation of public policy is

obviously an intentional conduct. Id. Lastly, the court held that a governmental entity

cannot be held liable for the intentional torts of its employees. Id. For these reasons

the court concluded that the plaintiff failed to plead a valid basis for avoiding

governmental immunity in order to survive the defendant’s motion for summary

disposition. Id.

O’Connor says defendants’ arguments must fail because Michigan’s courts and

legislature do not have the authority to exempt parties from liability for violating the

Michigan Constitution. He asserts that the governmental immunity exceptions are in

conflict with the clear language of the Constitution and should be deemed

unconstitutional. He cites no authority and fails to develop an argument.

Because Kobylarz as elected Supervisor has governmental immunity and

O’Connor has not pled in avoidance of immunity against the Township, he has failed to

plead a valid public policy violation. This claim must be dismissed.

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V. CONCLUSION

For the reasons set forth above, the Court DISMISSES Count Two. The case

shall go forward on Count One.

SO ORDERED. 

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: August 13, 2009

I hereby certify that a copy of the foregoing document was mailed to the attorneys of

record on this date, August 13, 2009, by electronic and/or ordinary mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160

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