UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KATHLEEN LEAVEY,

Plaintiff,

v.

CITY OF DETROIT, ET AL., 

Defendants.

Case No. 09-11288

SENIOR UNITED STATES

DISTRICT JUDGE

ARTHUR J. TARNOW

UNITED STATES MAGISTRATE

JUDGE

VIRGINIA M. MORGAN

 /

OPINION AND ORDER GRANTING DEFENDANT CITY OF DETROIT’S

MOTION FOR SUMMARY JUDGMENT [59] AND DEFENDANT ATKINS’

MOTION FOR SUMMARY JUDGMENT [60]

Before the Court are Defendant City of Detroit’s Motion for Summary

Judgment [59] and Defendant Atkins’ Motion for Summary Judgment [60]. On

May 13, 2010, the Court heard oral arguments on the motions.

For the reasons that follow, Defendant City of Detroit’s Motion for

Summary Judgment and Defendant Atkins’ Motion for Summary Judgment are

GRANTED.

I. Procedural background and facts

The original complaint was filed in this matter on April 7, 2009. A second

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1

 The second amended complaint has four counts: 1) First Amendment retaliation claim

against Defendant Atkins 2) First Amendment retaliation claim against Defendant City of Detroit 

3) Reverse race discrimination claim under the Fourteenth Amendment against Defendant City

of Detroit 4) Reverse race discrimination claim under the Michigan Elliott-Larsen Civil Rights

Act against Defendant City of Detroit. 

2

amended complaint was filed on November 30, 2009.1 The events giving rise to

the case transpired in the weeks prior to the mayoral primary election in 2009 and

are as follows: Plaintiff Kathleen Leavey, who is white, was serving as Interim

Corporation Counsel for Defendant City of Detroit. Plaintiff had been appointed to

that position by Mayor Kenneth Cockrel, who is African-American. Plaintiff

asserts that in December 2008, she learned of a judgment that an individual,

Thomas Sciotti, had won in a reverse discrimination case against the 36th District

Court. Sciotti’s attorney was aggressively seeking collection of that judgment. 

Plaintiff alleges that the City had not previously paid a judgment against the Court

and was therefore unprepared when the Court demanded that the City pay Sciotti a

six figure sum. Proper procedures had to be followed before payment was made. 

When Plaintiff learned of the judgment, she maintains that she contacted the

senior attorney for the 36th District Court, Constance Allen. Allen had worked on

the case for the Court. Plaintiff was unable to reach Allen at first but ultimately

reached Defendant Atkins, Chief Judge of the 36th District Court. Plaintiff claims

that “she informed Judge Atkins that the City would pay the bill but it would have

to be paid out of the Court’s budget” and “Plaintiff also requested the pleadings so

that she could comply with the City’s payment procedures.” See Plaintiff’s

Response to City’s Motion for Summary Judgment at 2 (emphasis added). 

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2

 Plaintiff testified “that issues regarding that court would normally be referred to

Dennis.” See City’s Motion, Exhibit A at 56. Plaintiff was of course his boss.

3

Plaintiff notes that there was a dispute over which of the City’s budgets, the City’s

general fund or the Court’s, the judgment would come out of, with Plaintiff

believing that the money was supposed to come out of the Court’s budget. 

With Sciotti’s attorney pursuing the judgment, Defendant Atkins directed

Allen to further address the payment issue with Plaintiff and Chief Assistant

Corporation Counsel Dennis Mazurek. Mazurek worked in the governmental

affairs division, which handles issues regarding the 36th District Court.2

 A

telephone conference call was set up for Plaintiff, Mazurek, and Allen on January

14, 2009. Plaintiff states in her complaint that “[t]he purpose of the conference call

was to discuss payment by the City of a judgment in the amount of $424,000.00

against the 36th District Court in the case of Sciotti v. 36th District Court.” See

Amended Complaint at ¶14. All three participants in the conference call were

white. Defendant Atkins is African-American. 

At some point during the call, the conversation deteriorated. Defendants

assert that it was Mazurek who became hostile, while Plaintiff alleges that it was

Allen. Mazurek testified that Allen’s position was that the City was responsible for

paying the judgment and that it was not necessary to give a copy of the pleadings

to Leavey and Mazurek, who were requesting them. See Plaintiff’s Response to

City’s Motion, Exhibit A at 34. Plaintiff maintains that Allen “became

argumentative, defensive, and rude” and attacked her and Mazurek, because she

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 According to Allen, Plaintiff’s statement was that “if the court stopped acting like a

ghetto court, the City might be more inclined to pay our bills.” See City’s Motion, Exhibit E at

21. Mazurek testified that he “recall[s] her saying something to the effect of if we’re not careful,

it will become a ghetto court.” Id., Exhibit F at 33, 85. Regardless of the exact words spoken,

everyone is in agreement that the term “ghetto court” was used. 

 Plaintiff later testified that when Deputy Mayor Green asked her why she made the

remark, she told him, “It was— I explained to him reference to the operation of the Court, the

fact that people were, I thought, mistreated in that court and were not treated with respect; that

people generally don’t like to go to the court because it is so disorganized, and the people are

rude...” See City’s Motion, Exhibit A at 79.

4

was “feeling the repercussions” of the outcome of the Sciotti case. See Plaintiff’s

Response to City’s Motion at 2-3. 

Plaintiff testified that it was a “very difficult conversation,” with Allen

talking over them and cutting them off. See City’s Motion, Exhibit A at 67-68. 

Discussion of the Sciotti judgment and a request for pleadings ultimately lead to

criticism of the Court. Plaintiff testified that she thought that Mazurek became

upset first and “started talking about the part-time court, that kind of stuff”

(Mazurek allegedly started criticizing the Court, including talking about how the

judges do not take the bench until late in the morning and how they leave early in

the afternoon). Id., Exhibit A at 68.

Plaintiff testified that she “figured [she] better step in and kind of defend

[Mazurek] and get off that topic” and “that’s the point at which [she] said, ‘You

know, Connie, you know, people don’t have a lot of respect for your court, or they

don’t– you know, your court is like a ghetto court. You treat people terrible over

there. You know, they wait in lines all day long...’” See City’s Motion, Exhibit A

at 683

 (emphasis added). Plaintiff alleges that when she said this, it was a “nonCase 2:09-cv-11288-AJT-VMM Document 68 Filed 06/24/10 Page 4 of 27
4

 Allen testified that she “was speechless” after Plaintiff made her remark. See City’s

Motion, Exhibit E at 23. 

5

event”4 and that the conversation continued for a bit more and then concluded. Id.,

Exhibit A at 92. Allen stated that she would try to get the pleadings and would

share Plaintiff’s and Mazurek’s concerns with Defendant Atkins.

Following the conversation, Allen contacted Judge Atkins and informed her

of what was said during the call. Judge Atkins had Allen email her a recollection

of the conference call and that email was forwarded by Atkins to Deputy Mayor

Saul Green (who is African-American) the same day. Atkins also called Green and

told him that Leavey had referred to the Court as “ghetto.” See City’s Motion,

Exhibit D at 49-50. 

Green attempted to contact Plaintiff but could not reach her. He also

informed Mayor Cockrel of the call. Green ultimately spoke with Plaintiff the

morning of the next day after the phone conference, January 15, 2009. Plaintiff

initially stated to Green that she did not recall making the remark but later in the

morning informed Green via email at 10:28 a.m. that she did. In her email, she

stated, “I did use the term I have to admit. This could be damaging to the mayor

and the city. There may be only one solution to all who will want a pound to flesh

and that [is] for me to resign and proceed to retirement.” See City’s Motion,

Exhibit I. 

Plaintiff eventually came in to her office and read the email Allen sent to

Green (Green had forwarded it to her). She then emailed Green twice indicating

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she had read the email and that it was a misrepresentation of the conversation. She

indicated that she was taking back her offer to resign. See City’s Motion, Exhibits

J and K. 

Later that day, Plaintiff met with Deputy Mayor Green. Plaintiff asserts that

the focus of the discussion was the “ghetto court” remark. 

At some point that day, Judge Atkins sent a letter to Plaintiff, with various

city officials copied on it including Mayor Cockrel, Deputy Mayor Green, judges

of the 36th District Court, and several city council members. See City’s Motion,

Exhibit M. The letter was received that same day and indicated, inter alia, how

offended Judge Atkins was with the characterization of the Court as “ghetto.” 

Judge Atkins referred to that depiction as “racist to this court and the entire city”

and as “racially charged insults.” Id. Judge Atkins also addressed some of

Mazurek’s remarks criticizing the Court. Id. Plaintiff testified that Green called

her shortly after their afternoon meeting and told her that she was going to have to

resign. Id., Exhibit A at 97. Plaintiff sent Green her resignation letter that same

day. Id., Exhibit L.

On January 20, 2009, Plaintiff emailed Mayor Cockrel seeking to rescind her

resignation. See City’s Motion, Exhibit N. Approximately a week later, he sent

Plaintiff a letter backdated to January 15, 2009 accepting her resignation. Id.,

Exhibit O. 

Mayor Cockrel later testified that the comment and the discussion “could

have negatively impacted and influenced future dealings between the Law

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 Following the hearing, Defendant City of Detroit filed a supplemental brief [67] on May

24, 2010 in support of its Motion for Summary Judgment. The Court declines to consider it in

reaching its decision. However, even if the Court were to consider it, the discussion contained

therein does not in any way alter the outcome of this case. 

7

Department and the City of Detroit in general, not only with the 36th District Court

but which would also have affected the credibility of the Law Department and the

head of the Law Department in dealings with the City Council, that was my

concern.” See City’s Motion, Exhibit B at 17. 

After her resignation, Plaintiff returned to her former civil service position

with the City. See City’s Motion, Exhibit A at 106. 

Following the filing of this lawsuit, Defendant Atkins and the 36th District

Court (originally a defendant) filed a motion to dismiss. Following a hearing on

July 7, 2009, this Court ruled that the 36th District Court was entitled to immunity

and dismissed it from this suit. The Court also ruled that the suit could not be

brought against Defendant Atkins in her official capacity but could proceed against

her in her individual capacity. Finally, the Court dismissed Plaintiff’s claim for

retaliatory defamation and denied Defendant Atkins’ assertion of qualified

immunity without prejudice.

On January 22, 2010, Defendant City of Detroit filed the instant Motion for

Summary Judgment [59] and Defendant Atkins filed her Motion for Summary

Judgment [60]. Plaintiff filed responses to both motions [61 and 62] on February

11, 2010. Defendant City of Detroit filed a reply [64] on February 18, 2010.5

 

II. Standard of Review

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A summary judgment finding is appropriate under Fed R. Civ. P. 56(c)(2)

where “the pleadings, the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that

movant is entitled to judgment as a matter of law.” In making its determination,

the court “must assume the truth of the non-moving party’s evidence and construe

all inferences from that evidence in the light most favorable to the non-moving

party.” See Ciminillo v. Streicher, 434 F.3d 461, 464 (6th Cir. 2006). A moving

party “bears the initial responsibility of informing the district court of the basis for

its motion”; this burden “may be discharged by ‘showing’ -- that is, pointing out to

the district court -- that there is an absence of evidence to support the nonmoving

party's case.” See Celotex Corp. v. Catrett, 477 U.S. 317, 323-325 (1986). The

non-moving party will not prevail simply because of “[t]he mere existence of a

scintilla of evidence in support of” his or her claim; rather, “there must be evidence

on which the jury could reasonably find for the [non-moving party].” See Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The burden then shifts to the

non-moving party, who “must do more than simply show that there is some

metaphysical doubt as to the material facts”; the party must “come forward with

‘specific facts showing that there is a genuine issue for trial.’” See Matsushita

Elec. Indus. Co., Ltd., et al. v. Zenith Radio Corp., et al., 475 U.S. 574, 587 (1986)

(citing FRCP Rule 56(e)). Summary judgment is appropriate “[i]f the evidence is

merely colorable, or is not significantly probative....” See Anderson, 477 U.S. at

249-250 (citations omitted). 

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 Plaintiff does not assert in her complaint that the discussion of the Sciotti judgment

constituted protected speech. Counsel for Plaintiff also maintained during oral argument on

Defendant’s motion that he was not arguing that discussion about the judgment was protected

under the First Amendment. 

9

III. Analysis

A. Count II of Complaint- First Amendment Retaliation claim against 

Defendant City of Detroit

Plaintiff alleges that she engaged in protected activity under the First

Amendment when she spoke on a matter of public concern— The dysfunctional

operation of the 36th District Court. See Plaintiff’s Second Amended Complaint at

¶53.6

 After Defendant Atkins took offense to her speech, Plaintiff alleges that the

City took an adverse action against her by requiring her to resign from her position

as Interim Corporation Counsel. Plaintiff alleges that her protected criticism of the

Court was the cause of the City forcing her to resign, which in her view makes out

a First Amendment claim.

Defendant argues that under the Supreme Court’s ruling in Garcetti v. 

Ceballos, 547 U.S. 410 (2006), Plaintiff’s First Amendment claim should be 

dismissed. 

This Court finds that Garcetti controls the outcome of Plaintiff’s First

Amendment claim against the City. In Garcetti, the Court, relying on Pickering v.

Board of Education, 391 U.S. 563 (1968), and its progeny, addressed the proper

inquiries that guide First Amendment analysis for public employee speech. A

court is to look at:

whether the employee spoke as a citizen as a matter of public concern. 

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 In Garcetti, an assistant district attorney (ADA) had written a memo to his supervisors

about inaccuracies in an affidavit used to obtain a search warrant and recommended dismissal of

the case. See Garcetti at 414. The supervisors met with him in a meeting that ultimately became

heated. Id. Despite the ADA’s concerns, the supervisor decided to proceed with the

prosecution. Id. At a hearing on the motion to challenge the warrant, the ADA was called by the

defense and discussed his observations of the warrant. Id. at 414-415. Afterwards, he claimed

he was reassigned, transferred to another courthouse, and denied a promotion. Id. at 415. 

The Court concluded that the ADA did not act as a citizen in making his speech but

rather was acting as a government employee pursuant to his official duties. Id. at 422. 

Therefore, his speech was not protected by the First Amendment.

10

If the answer is no, the employee has no First Amendment cause of

action based on his or her employer’s reaction to the speech. If the

answer is yes, then the possibility of a First Amendment claim arises. 

The question becomes whether the relevant government entity had an

adequate justification for treating the employee differently from any

other member of the general public. This consideration reflects the

importance of the relationship between the speaker’s expressions and

employment. A government entity has broader discretion to restrict

speech when it acts in its role as employer, but the restrictions it

imposes must be directed at speech that has some potential to affect

the entity’s operations. 

See Garcetti, 547 U.S. at 418 (citations and internal quotation marks omitted). 

The Court went on to “hold that when public employees make statements

pursuant to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” Id. at 421.7

 In defining the scope of an employee’s

official duties, the Court noted that:

[t]he proper inquiry is a practical one. Formal job descriptions often

bear little resemblance to the duties an employee actually is expected

to perform, and the listing of a given task in an employee’s written job

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description is neither necessary nor sufficient to demonstrate that

conducting the task is within the scope of the employee’s professional

duties for First Amendment purposes. 

Id. at 424-425. 

Thus, the question this Court is presented with is whether Plaintiff’s remarks

were made pursuant to her official duties. 

The Court finds that Plaintiff’s own complaint and testimony demonstrate

that she was indeed acting within her official duties when the comments were

made. The conference call was made as part of Plaintiff’s job. Plaintiff’s Second

Amended Complaint states, “The purpose of the conference call was to discuss

payment by the City of a judgment in the amount of $424,000.00 against the 36th

District Court in the case of Sciotti v. 36th District Court.” See Plaintiff’s Second

Amended Complaint at ¶14. Plaintiff states in her deposition testimony that she

“was doing what my job required, which was to talk about a judgment, find out

what had happened and relay that to Mr. Green.” See City’s Motion, Exhibit A at

144 (emphasis added). Plaintiff goes on to testify that she “was concerned about...

the fact that there was a judgment hanging out there that had not been paid, and I

was concerned that this gentleman [Sciotti’s attorney] was taking a lot of bizarre

action to, you know, satisfy the judgment. And we needed to clean this up. That’s

the whole reason for having the conversation is we had to make a decision one way

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12

or the other.” Id., Exhibit A at 145 (emphasis added). She also testified that “my

job was to gather the information for the Mayor’s office to make the decision.” 

Id., Exhibit A at 145 (emphasis added). 

Plaintiff cannot now reasonably argue that this conference call and the

speech in it were not made pursuant to her official duties. This was not a personal

phone call but rather was a business call. Even if the conversation regarding the

Sciotti judgment ultimately deteriorated and segued into negative comments,

including the “ghetto court” statement, being made about the 36th District Court,

that does not change the fact that this was an official phone call and that the call

and its subject matter were pursuant to Plaintiff’s official duties as Interim

Corporation Counsel. This Court rejects Plaintiff’s claim that she was acting as

Interim Corporation Counsel at the beginning of the call when the parties were

discussing payment of the Sciotti judgment and what budget it should come out of

and then suddenly turned into a private citizen criticizing the Court when she

decided to make the “ghetto court” remark, a comment which, in Plaintiff’s own

words, was more of an insult directed at Allen than the statements of a concerned

citizen. Plaintiff testified that when Deputy Mayor Green asked her why she made

the “ghetto court” remark, her response to him was, “I explained to him that the

conversation had gotten heated, that it was a way of me trying to, you know, just

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13

lobby back an insult to her, I think.” See City’s Motion, Exhibit A at 79 (emphasis

added). 

Plaintiff thus “was acting as a public employee carrying out [her]

professional responsibilities” when she made her remarks. See Haynes v. City of

Circleville, 474 F.3d 357, 364 (6th Cir. 2007); see also Weisbarth v. Geauga Park

District, et al., 499 F.3d 538, 544 (6th Cir. 2007) (Court, quoting Garcetti, finds

that Plaintiff’s speech “‘owes its existence to [her] professional responsibilities’”).

In her brief, Plaintiff claims that her position did not allow her to criticize

the 36th District Court and that her speech does not reflect any “special

knowledge” she gained as a result of her official position, thus distinguishing this

case from the various cases Defendant cited that rely on Garcetti in finding that

speech was not protected because it was made pursuant to official duties. 

However, Garcetti does not address “special knowledge” of the speaker; rather, the

focus is on official duties and whether a statement is made pursuant to those duties. 

Plaintiff offers no cases that show that the Garcetti standard does not apply here. 

Plaintiff also states in her brief that Garcetti holds that if speech has “any

relevant analogue to speech by citizens who are not government employees,” then

it was not made pursuant to official duties. See Plaintiff’s Response to City’s

Motion at 17. What the Court in Garcetti actually said though was that based on

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8 Garcetti does not state that such a distinction exists. 

14

prior precedent, “[e]mployees who make public statements outside the course of

performing their official duties retain some possibility of First Amendment

protection because that is the kind of activity engaged in by citizens who do not

work for the government. The same goes for writing a letter to a local newspaper

or discussing politics with a co-worker.” See Garcetti, 547 U.S. at 423-424

(citations omitted). However, in the case at bar, the statements were clearly made

in the course of Plaintiff performing her official duties. 

Finally, Plaintiff argues that this case involves speech that is different from

that in Garcetti because the speech in Garcetti was made internally to supervisors,

whereas the remarks here were made externally to non-supervisors. However,

regardless of whether the speech was made to a supervisor, it was made pursuant to

Plaintiff’s official duties as Interim Corporation Counsel. Even if this distinction

between internal and external speech existed,8

 the statement was made on a

business phone call discussing official business. Regardless of whether the

remarks were to a supervisor, the conversation was pursuant to Plaintiff’s official

duties.

Accordingly, Defendant City of Detroit is granted summary judgment on

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9

 Since this Court is granting Defendant’s summary judgment motion on the above

grounds, the Court declines to address the other elements of Plaintiff’s First Amendment

retaliation claim against the City. 

15

Plaintiff’s First Amendment claim.9

B. Count I of Complaint- First Amendment Retaliation claim against 

Defendant Atkins

As noted above, Plaintiff’s second amended complaint alleges that she was

engaged in protected activity under the First Amendment by speaking as a citizen

on a matter of public concern, i.e., the dysfunctional operation of the 36th District

Court. See Complaint at ¶43. Plaintiff alleges that Defendant Atkins retaliated

against her after she exercised her free speech rights by forwarding Allen’s email

about what was said on the conference call to Deputy Mayor Green and then

sending Plaintiff the January 15, 2009 letter discussed above (and copying Mayor

Cockrel, Green, city council members, and others). Plaintiff alleges that Atkins’

attack on her would deter a person of ordinary firmness from continuing to engage

in protected conduct. Id. at ¶47. 

First Amendment retaliation claims are often brought against an employer,

including here where Plaintiff alleges that she engaged in free speech and then

Defendant City of Detroit retaliated against her by forcing her to resign. However,

Defendant Atkins is not Plaintiff’s employer.

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If the standard regarding free speech set forth in Garcetti was applied to

Plaintiff’s claims against Judge Atkins, then Defendant Atkins’ motion would be

granted. The same analysis applied above to the free speech claim brought against

the City of Detroit would apply to the claim brought against Atkins as well. Since

Plaintiff’s speech was pursuant to her official duties, it would not be protected by

the First Amendment. 

However, Plaintiff argues that the holding of Garcetti does not apply here. 

According to Plaintiff, the rationale for Garcetti is that “[r]estricting speech that

owes its existence to a public employee’s professional responsibilities does not

infringe any liberties the employee might have enjoyed as a private citizen. It

simply reflects the exercise of employer control over what the employer itself has

commissioned or created.” See Garcetti, 547 U.S. at 421-422. Plaintiff argues that

this rationale does not apply to Defendant Atkins since she is not Plaintiff’s

employer. 

Although the Sixth Circuit has not addressed this question, Plaintiff points to

a district court case from Illinois, Lewis v. Mills, 2009 WL 3669745 at *5 (C.D. Ill.

2009), which held “that the government’s needs as an employer should not insulate

the actions of state actors who do not have an employment relationship with a

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10 The Seventh Circuit discussed the issue of Garcetti’s applicability to non-employers in

Fairley, et al., v. Andrews, 578 F.3d 518, 524 (7th Cir. 2009), but reserved ruling on whether

Garcetti “applies to punishments meted out by non-employers.” 

17

public employee asserting a First Amendment violation.”10

Defendant Atkins’ brief offers no argument as to why Garcetti should apply

to the analysis of Plaintiff’s claims against her as a non-employer. 

This Court agrees with Plaintiff that the holding of Garcetti should not be

applied in analyzing a First Amendment claim against a non-employer. That

means that the Court must examine whether Plaintiff’s speech raised an issue of

public concern.

Three elements must be established in order to set forth a First Amendment

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.

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

 In determining whether the speech is a protected activity, the court must

determine whether it involves a “matter of public concern.” This determination “is

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a question of law for the court.” See Farhart v. Jopke, et al., 370 F.3d 580, 589

(6th Cir. 2004). The Sixth Circuit in Farhart noted that in reaching this

conclusion, “the court must determine: the ‘focus’ of the speech; ‘the point of the

speech in question’; ‘to what purpose the employee spoke’; ‘the intent of the

speech’; or ‘the communicative purpose of the speaker.’” Id. at 592 (citations

omitted). Furthermore, the Court, citing Connick v. Myers, 461 U.S. 138, 147-148

(1983), stated that “‘whether an employee’s speech addresses a matter of public

concern must be determined by the content, form, and context of a given statement,

as revealed by the whole record.’” See Farhart, 370 F.3d at 589 (emphasis added). 

Finally, the Sixth Circuit has “held that the proper inquiry is not what might be

‘incidentally conveyed’ by the speech, and that ‘passing’ or ‘fleeting’ references to

an arguably public matter do not elevate the speech to a matter of ‘public concern’

where the ‘focus’ or ‘point’ of the speech advances only a private interest.” Id. at

592-593 (citations omitted) (emphasis in original).

Taking into account the above considerations, this Court holds that Plaintiff

has not established that the speech at issue raised a matter of public concern; thus,

it is not entitled to First Amendment protection.

Plaintiff has clearly delineated what speech she believes the First

Amendment protects. As noted above, Plaintiff’s second amended complaint does

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11 Plaintiff only cites one case, Chappel v. Montgomery County Fire Protection District No. 1,

131 F.3d 564 (6th Cir. 1997) in support of her argument that the speech at issue is a matter of public

concern. See Plaintiff’s Response to Defendant Atkins’ Motion at 12. In Chappel, the Court found that

the speech at issue dealt with matters of public concern, including “matters of public safety,” “the gross

mismanagement and misappropriation of public monies,” “implementation of a paramedic service,” and

the need for improved training. Id. at 578. 

19

not state that the discussion regarding what budget the Sciotti judgment should be

paid out of was a matter of public concern or that Plaintiff was acting as a “citizen”

and not pursuant to official business when the call was initiated. Moreover,

counsel for Plaintiff conceded at oral argument that this part of the conversation

did not raise a matter of public concern. Rather, Plaintiff’s complaint states in no

uncertain terms that she “engaged in protected activity under the First Amendment

by speaking as a citizen on a matter of public concern, i.e. the dysfunctional

operation of the 36th District Court.” See Complaint at ¶43. Her response to

Defendant Atkins’ motion states that “the efficient operation of a public institution

is clearly a matter of public concern.” See Plaintiff’s Response to Defendant

Atkins’ Motion at 13. 

In theory, speech regarding a court’s operation could raise a matter of public

concern.11 Where Plaintiff’s argument fails, however, is that she seeks to ignore

the holding of Farhart and look only at a few of the words spoken in the

conference call and not the “focus” of the speech in question or the “context” in

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12 There is no evidence that Plaintiff ever previously addressed the dysfunctional nature

of the Court or made public remarks trying to remedy whatever problems were occurring there. 

At oral argument, counsel for Plaintiff was unaware of Plaintiff ever previously raising concerns

about the 36th District Court. 

20

which it was spoken. Plaintiff was not writing a letter to a newspaper voicing her

concerns about the 36th District Court and the way that it treats people. Plaintiff

also was not speaking out at a public forum.12 Rather, the context in which the

words were spoken was during a business call during business hours pursuant to

official business. As detailed above in the examination of the City’s liability, the

purpose and focus of the conference call was discussion of the Sciotti judgment

and which budget payment should be made from. Plaintiff does not claim that this

portion of the conversation was a matter of public concern. 

The criticism of the Court was incidental to that discussion. Plaintiff herself

admitted that in her deposition testimony. As noted above— When asked by

counsel what Deputy Mayor Green had asked her about the conversation, she

testified, “He asked me why I said that [the ghetto court remark]. I explained to

him that the conversation had gotten heated; that it was a way of me trying to, you

know, just lobby back an insult to her, I think.” See City’s Motion, Exhibit A at 79

(emphasis added). Plaintiff cannot reasonably claim now that she was acting as a

concerned citizen when she made her remarks about the Court. She cannot pick

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13 See Schorfhaar v. McGinnis, et al., 2000 U.S. App. LEXIS 16219 at *14-15 (6th Cir.

2000) (unpublished) (Plaintiff, an assistant manager at MDOC’s Office of Fire Safety, alleged he

was denied a promotion in retaliation for expressing concern at an internal meeting not open to

the public about the potential for liability due to the lack of certain equipment in the prisons;

Court ruled that the speech was not a matter of public concern, as Plaintiff “was speaking in an

internal office setting only about matters concerning his duties as an employee– i.e., he spoke at

an internal meeting concerning the reinstallation of the SCBA equipment, which was clearly a

matter encompassed within his job duties. [He] concedes he never contacted the press or the

public, and that at all times his complaints remained an internal matter. Although [he] appeared

concerned about the installation of SCBA equipment, and particularly about the inconvenience

and cost of doing so, [his] references to code violations were not his central concerns”). 

See also Barnes, et al. v. McDowell, 848 F.2d 725,734 (6th Cir. 1998) (“The mere fact

that public monies and government efficiency are related to the subject of a public employee’s

speech do not, by themselves, qualify that speech as being addressed to a matter of public

concern”). 

14 In order to overcome qualified immunity, Plaintiff must demonstrate the violation of a

clearly established constitutional right. 

15 Since the Court finds that the speech did not raise a matter of public concern, it is

unnecessary to make findings regarding the other elements of Plaintiff’s retaliation claim. 

21

and choose portions of the speech without addressing the context and focus of the

entirety of the speech.13

Since Plaintiff has not established a constitutional violation, Defendant

Atkins is entitled to qualified immunity.14 Accordingly, Defendant Atkins’ Motion

for Summary Judgment should be granted.15

C. Counts III and IV of Complaint- Reverse racial discrimination

claims (federal and state) against City of Detroit

Plaintiff claims that she was ordered to resign because she used the term

“ghetto” in describing the Court and that she would not have been demoted if she

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16 The same test applies to both the federal discrimination claim and the discrimination

claim under the Michigan Elliott-Larsen Civil Rights Act, except that under Michigan law, a

plaintiff alleging reverse racial discrimination no longer must satisfy the “background

circumstances” prong. See Lind v. City of Battle Creek, 470 Mich. 230, 233 (2004); see also

Howell v. Michigan Dept. of Corrections, 2007 U.S. LEXIS 66193 at *38-39 (E.D. Mich. 2007).

22

was African-American. See Complaint at ¶61-63. 

A party alleging reverse racial discrimination by his/her employer must

make a four part showing in order to establish a prima facie case of discrimination. 

Plaintiff must establish: 1) that “background circumstances exist to support the

suspicion that the defendant is the unusual employer that discriminates against the

majority”; 2) that Plaintiff “was qualified for the position”; 3) that Plaintiff

“suffered an adverse employment action”; 4) that Plaintiff was “treated differently

than similarly situated non-protected employees.”16 See Arendale v. City of

Memphis, 519 F.3d 587, 603 (6th Cir. 2008) (citations and internal quotation marks

omitted).

Once Plaintiff establishes the prima facie case, the burden then shifts to

Defendant to offer a legitimate, non-discriminatory reason for the adverse

employment action. See Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603,

614-615 (6th Cir. 2003). If Defendant meets this burden, then the burden of

production shifts back to Plaintiff to demonstrate that the proffered reason is a

pretext for unlawful reverse racial discrimination. Id. at 615.

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23

Although Plaintiff satisfies the first three prongs of a prima facie case, she

fails to make a showing on the fourth prong.

1. Background Circumstances

As noted in Arendale, supra, “Recent Sixth Circuit precedent suggests, in the

context of reverse discrimination claims, that the mere fact that an adverse

employment decision was made by a member of a racial minority is sufficient to

establish the first prong of the prima facie case.” Id., 519 F.3d at 603 (citing

Zambetti v. Cuyahoga Cmty. Coll., 314 F.3d 249, 257 (6th Cir. 2002)). 

Here, the parties that made the decision to force Plaintiff to resign were

Mayor Cockrel and Deputy Mayor Saul Green. Both are African-American. 

Plaintiff has satisfied this prong of the prima facie case.

2. Qualifications

Defendant does not contest in its brief that Plaintiff has satisfied this prongPlaintiff was qualified for the Interim Corporation Counsel position.

3. Adverse Action

Defendant argues that there was no adverse action here, as a resignation does

not constitute an adverse employment action. Defendant further maintains that its

failure to allow Plaintiff to rescind her resignation would also not qualify as an

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24

adverse employment action. 

Defendant misunderstands Plaintiff’s claim. Plaintiff is claiming that she

was forced to resign, which could constitute an adverse employment action. See

Balmer v. HCA, et al., 423 F.3d 606, 615 (6th Cir. 2005) (Court notes that “the

only legally cognizable adverse employment action identified by [Plaintiff] is her

allegedly forced resignation or constructive discharge”). Furthermore, to the

extent that Defendant argues that Plaintiff’s January 15, 2009 email to Deputy

Mayor Green constituted a resignation that is not an adverse employment action, it

cannot conclusively be stated for purposes of this motion that the email was a

resignation, rather than an offer to resign. Plaintiff says in the email that “[t]here

may be only one solution... and that [is] for me to resign and proceed to

retirement.” See City’s Motion, Exhibit I. She does not state that she is resigning. 

Plaintiff satisfies this prong.

4. Similarly situated

Plaintiff must show that she was treated differently than similarly situated

minority employees to satisfy the fourth prong.

In her response to Defendant City’s motion, Plaintiff does not even attempt

to argue that she can make this showing. At the hearing on May 13, 2010, counsel

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17 In Arendale, the Court discussed the meaning of “similarly situated,” stating that:

[s]uperficial similarities between a disciplined employee and his colleagues are

not sufficient to show a prima facie case of discrimination. [W]hile the plaintiff

need not demonstrate an exact correlation with the employee receiving more

favorable treatment in order for the two to be considered similarly situated;... the

plaintiff and the employee with whom the plaintiff seeks to compare himself or

herself must be similar in all of the relevant aspects. 

Id., 519 F.3d at 604 (citation and internal quotation marks omitted). 

25

for Plaintiff conceded that if Plaintiff were required to satisfy this prong in this

form, she would be unable to do so.17 Rather, Plaintiff asserts that she does not

need to make the above showing on the fourth prong of the test. Instead, she

claims she can satisfy the fourth prong by showing that she was replaced by an

African-American or by showing a pattern and practice of discrimination. Plaintiff

claims that she has shown that she was replaced by an African-American and

therefore has satisfied this prong of the prima facie case.

Plaintiff is mistaken. The cases Plaintiff cites in support of her argument

that she does not have to show that she was treated differently than similarly

situated minority employees are not applicable here. The Sixth Circuit cases cited,

Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241 (6th Cir. 1995), and Clayton

v. Meijer, Inc., 281 F.3d 605 (6th Cir. 2002), are not reverse race discrimination

cases, nor is the Michigan state case cited, Hazle v. Ford Motor Co., et al., 464

Mich. 456 (Mich. 2001); therefore, a different test applies. Plaintiff ignores Sixth

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18 Additionally, the district court case Plaintiff cites, Herendeen v. Michigan State Police,

et al., 39 F.Supp.2d 899 (W.D. Mich. 1999) was decided in 1999, which is prior to the Sixth

Circuit’s rulings in Sutherland and Arendale.

26

Circuit precedent requiring that a party demonstrate that an employer treated a

similarly situated employee who was not white differently. See Sutherland, 344

F.3d at 614 (Court notes that the Sixth Circuit has adopted the analytical

framework governing Title VII claims of discrimination by whites against

minorities to claims involving reverse racial discrimination; Court states that to

satisfy the fourth prong, “the plaintiff must show that the defendant treated

differently employees who were similarly situated but were not members of the

protected class”) (emphasis added); see also Arendale, 419 F.3d at 603 (Sixth

Circuit again finds in reverse racial discrimination case that the “[p]laintiff must

show that the City treated differently similarly situated employees of a different

race”) (emphasis added).18

Plaintiff is thus unable to make out a prima facie case of reverse racial

discrimination. Accordingly, Defendant City of Detroit is granted summary

judgment on this claim.

IV. Conclusion

Based on the above findings, IT IS HEREBY ORDERED that Defendant

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City of Detroit’s Motion for Summary Judgment [59] is GRANTED.

IT IS FURTHER ORDERED that Defendant Atkins’ Motion for Summary

Judgment [60] is GRANTED.

Plaintiff’s complaint is hereby dismissed. 

SO ORDERED.

S/ARTHUR J. TARNOW 

Arthur J. Tarnow

Senior United States District Judge

Dated: June 24, 2010

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

record on June 24, 2010, by electronic and/or ordinary mail.

S/LISA M. WARE 

Case Manager

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