UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL O’LEARY,

Plaintiff,

v.

CHARTER TOWNSHIP OF FLINT,

DOUGLAS CARLTON, AND

TRACY TUCKER

Defendants.

 /

Case No. 09-13075

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT [21]

Plaintiff Michael O’Leary filed this action alleging that Defendants Charter Township

of Flint (Flint Township), Douglas Carlton (Carlton) and Tracey Tucker (Tucker) violated his

constitutional rights as secured by the First and Fourteenth Amendments and is seeking

damages under 42 U.S.C. § 1981 and 42 U.S.C. § 1983. This matter comes before the

Court on Defendants’ motion for summary judgment, pursuant to Federal Rule of Civil

Procedure 56, and for judgment on the pleadings, pursuant to Federal Rule of Civil

Procedure 12(c). For the reasons set forth below, Defendants’ motion is GRANTED.

I. Facts

A. Beach House Incident

Plaintiff, a caucasian male, is employed by Flint Township as a building inspector and

has been for the past 23 years. (Pl.’s Resp. at 6; State Court Am. Compl. ¶ 1; Am. Compl.
 1

 The Court refers to the complaint filed in this action as “Am. Compl.” and the complaint

filed in the state-court action as “State Court Am. Compl.”

 2

 According to Defendant, prior to Tucker’s employment, the department head position

was vacant and Carlton acted as Plaintiff’s interim direct supervisor. (Defs.’ Reply at 6.)

 3 Defendants, on the other hand, contend that 

Plaintiff ... found and recorded serious building code violations at this

building. These violations caused the fire inspector to characterize the

building as an ‘imminent hazard.’ In May 2007, after learning that Plaintiff

allowed the business to operate without correcting these violations ... Carlton

... recommended that Plaintiff take steps to padlock the building until all of the

violations Plaintiff documented were repaired.

Plaintiff never disputed Carlton’s instructions. During a meeting with Carlton,

Plaintiff and ... Rowley, agreed that the building should be padlocked. The

Township’s fire chief, John Ringwelski, who also inspected the building

agreed that the building should be padlocked. Following a May 16, 2007

meeting with Carlton, Plaintiff and Rowley traveled to the Beach House to

padlock the Building. A Township trustee, Brady Smith, contacted Plaintiff

and Rowley before they arrived ... and told them to give the owners 24

additional hours to make repairs. Plaintiff did not padlock the building that

day. Several months later, [in September 2007,] the Genesee County Health

Department (GCHD) directed Plaintiff to padlock the building after it

discovered that it was operating without electricity or hot water. Plaintiff

padlocked the building after the GCHD issued a formal request.

2

¶ 3-4, 8.)1

 Carlton was the Flint Township Supervisor as well as Plaintiff’s direct supervisor.2

(State Court Am. Compl. ¶ 4; Am. Compl. ¶ 6.) Carlton was succeeded in his capacity as

Township Supervisor by Karyn Miller “who beat ... Carlton in an election.” (Pl.’s Resp. at

15.) Tucker is a department head within the Township and is currently Plaintiff’s direct

supervisor. (Am. Compl. ¶ 7.)

In March 2007, Plaintiff conducted a building inspection of a local restaurant and bar

called the Beach House in connection with the transfer of a liquor license. Plaintiff along

with the Township’s assistant fire chief, Mark Rowley, performed the inspection and found

“no significant violations warranting shutting down the ... business.”3

 (Pl.s’ Resp. at 6; see
(Defs. Mot. at 6-7.)

Plaintiff, however, argues that “Defendants’ Statement of Facts regarding ‘imminent

hazards’ and thirty violations is pure fiction. What Defendants omit to tell this Court is that

this was not the condition of the [the Beach House] ... at the time Mr. O’Leary was ordered

to shut it down simply because it was an African-American business.” (Pl.’s Resp. at 6

fn.1.) 

3

also State Court Am. Compl. ¶ 7; Am. Compl. ¶ 11.) Carlton, however, was allegedly

dissatisfied with the results of the inspection and “made it clear” that he wanted Plaintiff to

shut down the Beach House—an African-American owned and operated establishment

“which catered to black clientele” in Flint Township, a predominantly white neighborhood.

(State Court Am. Compl. ¶ 5; Am. Compl. ¶ 9.) According to Plaintiff, Carlton ordered him

to:

“Shut them down, go into that business and find some reason to shut them

down. We don’t want ‘gang bangers’ and ‘north end problems’ coming into

our Township.”

(State Court Am. Compl. at ¶ 6; Am. Compl. ¶ 10.) 

Plaintiff interpreted the references to “gang bangers” and “north end problems” as

referring to African-Americans. (State Court Am. Compl. ¶ 6; Am. Compl. ¶ 10.) Plaintiff

believed Carlton was motivated by racism and was looking for a regulatory pretense under

which to act. Plaintiff, however, defied Carlton’s order and refused to shut down the Beach

House. (State Court Am. Compl. ¶¶ 7, 9; Am. Compl. ¶¶ 11, 13.) 

Here, the Defendant Township wanted him to apply a different, and blatantly

racist, merciless standard to this African-American owned business. Michael

O’Leary, however, is that rare white person who will do the right thing and

fight for the rights of African-Americans, even if it costs him his job and

livelihood. He stood up to Defendants’ racist attempt to destroy an

African-American business. He refused to be merciless and to treat the

African-American business differently than the white-owned businesses in

Defendant Flint Township. 
 4

 Tucker—a named Defendant in this action—was not named as a defendant in the

state-court action.

4

(Pl.s’ Resp. at 6-7.) In response to Plaintiff’s refusal to shut down the Beach House, Carlton

told Plaintiff, “You did a real poor job on that assignment.” (State Court Am. Compl. ¶ 8.)

Following the Beach House incident, Plaintiff claims that “his life became a living hell

at work.” (Pl.’s Resp. at 7.)

B. State-Court Action

On August 25, 2008, Plaintiff filed a lawsuit against Flint Township and Carlton in

Genesee County Circuit Court.4

 (Pl.’s Resp. at 8.) In the state-court complaint, Plaintiff

claimed that Flint Township and Carlton discriminated against him in violation of Michigan’s

Elliot-Larsen Civil Rights Act (ELCRA), Mich. Comp. Laws § 37.2201, et seq. (Pl.’s Resp.

at 8.) The two-count state-court complaint claimed that both Carlton and Flint Township 

retaliated against, discriminated against, and/or engaged in retaliatory

harassment [against him] for having stood up to/opposed race discrimination

against a black-owned business catering to black clientele regarding their

enjoyment of public services and public accommodations such as white

people seem to enjoy without any problem whatsoever.

(State Court Am. Compl. ¶ 9.) Plaintiff specifically alleged that Carlton and Flint Township

discriminated against him in “issuing phony/trumped up discipline against [Plaintiff],

suspending him from his job and/or finally ‘constructively discharging [Plaintiff]’ from his

job.” (State Court Am. Compl. ¶ 14.) In other words, Plaintiff claims that—because he failed

to comply with Carlton’s orders to shut down the Beach House restaurant—Flint Township

and Carlton were engaged in a studied purpose to drive him out of his job and categorically

retaliate and discriminate against him for standing up for the rights of the African-American

business owners and patrons. (Pl.’s Resp. at 7.) 
 5

 Specifically, paragraphs 1 through 9 of the state-court amended complaint are identical

to paragraphs 3 through 13 of the federal court Amended Complaint, excepting paragraph

7 which adds Tucker to the suit. (State Court Am. Compl. ¶¶ 1-9; Am. Compl. ¶¶ 3-6, 8-13.)

5

The state-court complaint was amended on March 17, 2009, (Pl.’s Resp., Ex. 8),

discovery ended on August 21, 2009, (Pl.’s Resp. at 7), and the state-court defendants filed

a motion for summary disposition which was argued on October 26, 2009, (Defs.’ Mot., Ex.

5). On November 6, 2009, the Genesee County Circuit Court granted the state-court

defendants summary disposition as to each claim filed in that action. (Defs.’ Mot., Ex. 3.)

On November 12, 2009, Plaintiff filed an appeal with the Michigan Court of Appeals, where

his state-court case remains pending. (Defs.’ Mot. at 7.)

C. Federal-Court Action

On August 4, 2009, with discovery underway in state-court, Plaintiff filed the instant

lawsuit against the same defendants named in the state-court action and also against

Tucker. Plaintiff’s federal complaint alleges violations of 42 U.S.C. §§ 1981 and 1983, again

asserting that Defendants discriminated and retaliated against him for his conduct

regarding the Beach House incident. (Am. Compl. ¶¶ 1, 5-7.) The two-count federal-court

complaint claims that Carlton, Tucker and Flint Township 

retaliated against, discriminated against, and harassed [Plaintiff] ... for having

stood up to/opposed race discrimination against a black-owned business

catering to black clientele regarding their enjoyment of public services and

public accommodations such as white people seem to enjoy without any

problem whatsoever in Flint Township.

(Am. Compl. ¶ 13.)

Plaintiff’s state and federal complaints contain nearly identical allegations5

 against

Defendants but for one specific allegation: (1) that Tucker, and the other named
 6

 These three disciplines proposed 44 days of unpaid leave. (Defs.’ Mot., Ex. 4.)

6

Defendants, colluded in an effort to manufacture false disciplinary notices against him in

retaliation for filing his state-court complaint.

(14) That Plaintiff, Michael O’Leary, exercised his First Amendment right of

free speech and to petition by, amongst other conduct, filing an ELCRA

retaliation lawsuit in State Court against Defendants Flint Township and

Carlton because he was punished for standing up for the rights of

African-Americans and an African-American business in Flint Township.

(15) That after Plaintiff filed and served upon Defendants said State Court

ELCRA lawsuit, Defendants further conspired and retaliated against Plaintiff

by actions including, but not limited to, secretly creating retroactive and

bogus “disciplinary” write-ups (which were attempted to be used by

Defendants’ counsel during the State Court deposition of Plaintiff).

(16) That Defendant Carlton acted in concert with the other Defendants in

retaliating against Michael O’Leary, and did in fact punish and/or retaliatorily

harass Michael O’Leary for his exercise of his constitutional and statutory

rights.

(Am. Compl. ¶¶ 14-16.)

The Amended Complaint refers to three disciplinary notices dated November 2008,

that purportedly contain false accounts of Plaintiff’s unsatisfactory job performance

allegedly demonstrating additional instances of retaliation against Plaintiff.6

 (Pl.’s Resp. at

7.) Plaintiff contends that these disciplinary notices, which were authored by Tucker in

coordination with Flint Township and Carlton, were “secretly creat[ed] retroactive[ly]” in an

attempt “to be used by Defendants’ counsel during the State Court deposition of Plaintiff.”

(Am. Compl. ¶ 15.) Defendants, on the other hand, contend that the disciplinary action

notices were written in response to Plaintiff’s failure to comply with Flint Township

standards and procedures when issuing demolition permits, certificates of occupancy and
 7

 Plaintiff was served these secret documents, labeled FTWP0747 through FTWP0750,

on April 8, 2010 when defendants’ counsel, in the state court action, deposed him. (Pl.’s

Resp. at 7; Defs.’ Mot. at 15.) 

7

notices of violation. (Defs.’ Mot., Ex. 4.) These disciplinary action notices, however, were

never issued to Plaintiff.

Plaintiff first learned of the disciplinary action notices on April 8, 2009,7 just three

weeks after filing his first amended complaint the state-court action, more then four months

before the discovery cut-off date and seven months before summary disposition was

granted in that state-court action. (Defs.’ Mot. at 15.)

During discovery in the State Court case, an amazing thing happened. While

Defense Counsel was questioning Plaintiff at a deposition, Defense Counsel

marked as exhibits several written disciplines to question Plaintiff about and

use against him in defending the case. Defendants’ counsel didn’t realize,

however, that these were secret write-ups that were devised after Plaintiff’s

ELCRA lawsuit was filed. In other words, Defendants had concocted a secret

paper trail that was never shown to Plaintiff before his deposition that

Defendants were going to use as a basis to fire Plaintiff simply because he

exercised his constitutional rights by filing his ELCRA lawsuit in State Court.

(Pl.’s Resp. at 7.) In July 2009, Plaintiff also deposed Tucker about these disciplinary

notices in connection with discovery in the state-court action. (Pl.’s Answer at 7.)

This matter is currently before the Court on Defendants’ motion for summary

judgment.

II. Rule 56 Motion for Summary Judgment Standard

Summary judgment is appropriate only when there is “no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The central inquiry is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as
8

a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Rule 56(c)

mandates summary judgment against a party who fails to establish the existence of an

element essential to the party’s case and on which that party bears the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The non-moving party may not rest upon its mere allegations, however, but rather “must

set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

The mere existence of a scintilla of evidence in support of the non-moving party’s position

will not suffice. Rather, there must be evidence on which the jury could reasonably find for

the non-moving party. Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

III. Analysis

Defendants argue that, in light of the allegations in Plaintiff’s state-court and federal

complaints and his reliance on identical evidence in both lawsuits, Plaintiff should have

sought leave to amend his state-court complaint. Defendants contend that, in this action,

Plaintiff is merely trying to relitigate the same claims that have already been adjudicated

on the merits in the state-court action. Defendants, therefore, conclude that because

Plaintiff failed to amend his state-court complaint his claims in this action are barred by the

doctrine of res judicata. Plaintiff, on the other hand, argues that his claims are not barred
9

by res judicata because: (1) the federal action relates to a separate transaction or

occurrence than does the state-court action; and (2) each action has different named

defendants. 

A. Claim Preclusion

“The Full Faith and Credit Clause, U.S. Const., Art. IV, § 1, as implemented by the

federal full faith and credit statute, 28 U.S.C. § 1738, requires federal courts to give

preclusive effect to state court judgments.” Katt v. Dykhouse, 983 F.2d 690, 693 (6th Cir.

1992); see generally Moore’s Federal Practice 3d § 133.30. “[W]hen asked to give

preclusive effect to a prior state court judgment, a federal court must look to the law of the

rendering state to determine whether and to what extent that prior judgment should receive

preclusive effect in a federal action.” Hapgood v. City of Warren, 127 F.3d 490, 493 (6th

Cir. 1997). Accordingly, in this case, Michigan law governs the preclusive effect of Plaintiff’s

prior state-court action.

Under Michigan law, courts give preclusive effect to prior judgments when: 

(1) the prior action was decided on the merits, (2) both actions involve the

same parties or their privies, and (3) the matter in the second case was, or

could have been, resolved in the first.

Adair v. State, 680 N.W.2d 386, 396 (Mich. 2004); see also Dart v. Dart, 597 N.W.2d 82,

88 (Mich. 1999). The Court finds that these elements are met here, and discusses each in

turn.

1. Prior Action Decided on the Merits

It is well established than an action is decided “on the merits” when summary

disposition is granted. See Sherrell v. Bugaski, 425 N.W.2d 707, 709 (Mich. Ct. App. 1988).

Here, the Michigan Circuit Court granting summary disposition to Flint Township and
10

Carlton and that decision was, therefore, a decision “on the merits.” Although Plaintiff has

apparently appealed this final order, the fact that an appeal is pending does not alter the

preclusive effect of the order. See Crawford, 202 F.R.D. at 226 (“However, the rule in

Michigan is that a judgment pending on appeal is deemed res judicata.”) (internal

quotations and citation omitted). Accordingly, the first element of res judicata is satisfied.

2. Both Actions Involve the Same Parties or Their Privies

The second element requires that both actions be between the same parties or their

privies. Both Carlton and Flint Township were named defendants in the state-court action.

“Thus, the party against whom claim preclusion is being asserted was present in both

suits.” Dubec, 312 F.3d at 751. The second element of res judicata, as to these parties is,

therefore, satisfied. See Crawford, 202 F.R.D. at 227 (“Plaintiff’s claims under both § 1983

and § 1981 against the same defendant officials named in the state court action are barred

by res judicata. Although plaintiff argues that this action is not barred because he has

added the § 1981 claim against those same defendants, the § 1981 claim is barred

because it clearly could have been brought in the state case and it arose out of the same

transaction or occurrence.”). Tucker, on the other hand, was not a named defendant in the

state-court action. 

Plaintiff argues that because Tucker was not a party to the state-court action, nor the

direct successor to Carlton as Flint Township Supervisor, the parties are not in privity.

Plaintiff, however, defines privity too narrowly. 

A government official sued in his or her official capacity is considered to be

in privity with the government. Therefore, a judgment for or against an official

will preclude a subsequent action on the same claim by or against another

official or agency of the same government. Similarly, a prior judgment
11

involving the government will bar an action against individual officials of the

government in their official capacity for the same claim.

Crawford, 202 F.R.D. at 227 (quoting Moore’s Federal Practice 3d, § 131.403(e)(ii)).

Tucker, therefore, does not need to be the direct successor to Carlton in order to be in

privity to the prior suit as Plaintiff argues: Tucker need only be an official in the employment

of Flint Township and named as a result of that capacity. See Dubuc v. Green Oak Twp.,

312 F.3d 736, 751 (6th Cir. 2002); Crawford, 202 F.R.D. at 227 (“[T]he claims are barred

because both Pollock and Burke are parties ‘in privity’ with the defendant officials involved

in the prior state action and with the state agencies named as defendants in the prior state

case.”). It follows that Tucker, as an official employed by Flint Township—whose duties

included managing Plaintiff in a capacity similar to Carlton—was named as a result of that

capacity and is, therefore, in privity to the defendants in the state-court action. 

Plaintiff, however, argues that strict claim preclusion does not apply to Tucker with

respect to the claims asserted against her in an individual capacity. See Fleming v. City of

Detroit, No. 04-74081, 2006 WL 2559862, at *6 (E.D. Mich. Sept. 1, 2006) (“While privity

generally exists between a city official sued in his official capacity and the city, the opposite

is generally true as to a city official sued in his personal capacity.”).

A government official sued in his personal capacity, however, presents a

different case. If the plaintiff prevails against the official, the official must

satisfy the judgment out of his own pocket, rather than have the government

entity pay the damages . . . [C]ourts do not generally consider an official sued

in his personal capacity as being in privity with the government. 

However, this distinction between official capacity and personal capacity

claims is not ironclad. Where there is a sufficient identity of interest between

a government official and the governmental entity or where the inclusion of

the personal capacity claim amounts to nothing more than a pleading artifice,

privity may be found to exist regardless of the fact that the official has been

sued in his personal capacity.
12

Fleming, 2006 WL 2559862, at *6. 

Although Plaintiff brought this suit against Tucker in her individual capacity, and not

in her official capacity, Defendants contend that this is simply an unfounded attempt to

defeat claim preclusion.

The [c]ourt should not allow [a]ppellant to continue this repetitive litigation

simply by finding some municipal official that has not yet been sued, and

trying to blame what he claims was systemic group mistreatment of him on

that one person individually.

Dubuc, 312 F.3d at 752. Michigan law holds that defendants, even in their individual

capacity, are in privity to prior lawsuits involving their governmental employer,

and—Defendants contend—this claim is accordingly barred by the state’s broad claim

preclusion doctrine. See Adair, 680 N.W.2d at 397 (holding that, under Michigan law, “a

perfect identity of the parties is not required;” rather, the Michigan courts require “a

substantial identity of interests and a working functional relationship in which the interests

of the nonparty are presented and protected by the party in the litigation”); see also

Fleming, 2006 WL 2559862, at *6-*7 (quoting Williams v. City of Allentown, 25 F.Supp.2d

599, 604 (E.D. Pa. 1998); Motuelle v. Ruffini, No. 244557, 2004 WL 1254304, at *1 (Mich.

Ct. App. June 8, 2004). 

In Motuelle, the plaintiff was unsuccessful in his attempt to overturn an administrative

appeal that found him ineligible for law enforcement certification in Michigan Circuit Court.

Motuelle, 2004 WL 1254304, at *1. The circuit court affirmed the administrative hearing

officer’s opinion on the merits. Id. at *2. The plaintiff subsequently filed another complaint

in another Michigan Circuit Court naming additional defendants who were not named in the

prior action. That circuit court granted the defendants’ motion for summary disposition,
13

concluding, inter alia, that the plaintiff’s claims were barred by res judicata and collateral

estoppel, notwithstanding the addition of other defendants. Id. On appeal, the Michigan

Court of Appeals rejected the plaintiff’s argument that the defendants in the second action

were not privies to the defendants in the first action. The appellate court “explained the

related privity requirement in the context of the doctrine of res judicata.” Id. at *4.

The parties to the second action need be only substantially identical to the

parties in the first action, in that the rule applies to both parties and their

privies. As to private parties, a privy includes a person so identified in interest

with another that he represents the same legal right, such as a principal to

an agent, a master to a servant, or an indemnitor to an indemnitee. In order

to find privity to exist between a party and non-party, Michigan courts require

both a substantial identity of interests and a working or functional relationship

in which the interests of the non-party are presented and protected by the

party in the litigation. 

Here, the COLES and defendants had an employer-employee relationship.

Plaintiff’s suit against defendants involves defendants’ conduct while in

performance of their duties as COLES employees. Defendants’ interests as

employees were presented and protected in plaintiff’s suit against the

COLES, which involved the same set of facts. Therefore, the trial court

properly considered defendant to be in privity with the COLES.

Next, plaintiff contends that the claims he brought in the previous action were

against the defendants in their official capacities, so they differ from the

claims brought in the present case, which are against defendants in their

individual capacities . . . Michigan law defines res judicata broadly to bar

litigation in the second action not only of those claims actually litigated in the

first action, but claims arising out of the same transaction which the parties,

exercising reasonable diligence, could have litigated but did not. If the same

facts or evidence would sustain both the previous action and the subsequent

action, they are the same for purposes of res judicata . . . [P]laintiff advanced

separate theories in separate suits before two different courts for one

common set of facts. This is precisely the situation that the doctrine of res

judicata seeks to discourage.

Motuelle, 2004 WL 1254304, at *3-*4(internal quotations, citations and footnotes omitted).

The existence of privity among defendants in subsequent actions, within the context

of an employer-employee relationship, has also been applied by the Sixth Circuit.
14

Under Michigan law, however, “a perfect identity of the parties is not

required”; rather, the Michigan courts require “a substantial identity of

interests and a working functional relationship in which the interests of the

nonparty are presented and protected by the party in the litigation.” Adair v.

Michigan, 680 N.W.2d 386, 396, 397 (Mich. 2004) (internal quotation marks

omitted). This test is met when the previous governmental-unit Defendant

(here, the MDOC) and the present-case Defendants (here, the individually

named Defendants) have an employer-employee relationship, regardless of

whether the claims in the first suit were brought against the Defendants in the

same capacity as the claims in the second. See Motuelle v. Ruffini, No.

244557, 2004 WL 1254304, at *4 (Mich. Ct. App. June 8, 2004) (unpublished

opinion).

McCoy v. Michigan, No. 08-1641, 2010 WL 841198, at *3 (6th Cir. 2010). 

Here, Tucker is an employee of Flint Township and, like Carlton, managed Plaintiff.

The Court finds that, as between Tucker and the other Defendants, there is a sufficient

identity of interests and a sufficient working or functional relationship such that Tucker is

in privity with them. “Any other holding would reward litigants who failed, intentionally or not,

to include all relevant parties in an action and would permit two (or possibly many more)

attempts to try the same cause of action.” Fleming, 2006 WL 2559862, at *6 (internal

quotations and citation omitted). Accordingly, Plaintiff’s attempt to defeat claim preclusion

by naming Tucker is rejected and the privity requirement is satisfied. 

3. Matter in Second Case was, or could have been, Resolved in the First

To defeat this element, Plaintiff argues there are two separate and distinct

transactions. He argues the first transaction, as alleged in his state-court complaint, was

the initial discrimination and retaliation that he suffered because he opposed Carlton’s order

to “shut down” the Beach House. The second transaction, that Plaintiff claims is separate

and distinct from the first thereby forming the basis for this action, is the retaliation that
15

Defendants subjected him to for having filed the state-court action, including the November

2008 disciplines. 

Plaintiff alleges that any events which happened after the state court suit was filed are

a separate transaction or occurrence (Pl.’s Resp. at 8-10.). Because he alleges the

Township, Carlton and Tucker retaliated specifically for having filed the state court action,

Plaintiff believes he should not be precluded from raising the federal claims in a separate

action. “Specifically, Plaintiff was very careful to limit his Federal Court lawsuit to the

separate and distinct transaction/occurrence #2, namely, that he was retaliated against in

violation of his First Amendment rights for raising “matters of public concern” by filing the

underlying, first lawsuit for opposing race discrimination.” (Pl.’s Resp. at 9.).

Defendants, on the other hand, contend that

these claims are based on the identical set of facts alleged in the state case,

which were adjudicated on the merits when the state court granted

Defendants’ dispositive motion. Not only are the alleged circumstances and

alleged retaliation identical, Plaintiff knew of the claims alleged here while the

state action was pending and well before Defendants even filed their

dispositive motion.

(Defs.’ Mot. at 15.) And, this Court agrees: although Plaintiff correctly contends that the

alleged retaliation, if true, would be in violation of his constitutional rights, he incorrectly

states that this comprises a separate or distinct transaction under Michigan’s broad claim

preclusion doctrine.

“[R]es judicata is employed to prevent multiple suits litigating the same cause of

action.” Adair, 680 N.W.2d at 396. Michigan courts broadly apply res judicata to claims

previously litigated and those arising out of the same transaction that could have been

raised with the exercise of reasonable diligence, but were not. Dart, 597 N.W.2d at 86. “The
 8

 In Darrow, the plaintiff raised sexual harassment claims in state court, but the court

entered a judgement of no cause of action following trial. Darrow, 2008 WL 5382341, at *3.

The plaintiff later filed a federal claim based on the same facts as the state claim but

alleging different causes of action, which included a § 1983 claim. Id. at *4. The federal

court noted that state courts have concurrent § 1983 jurisdiction with federal courts. Id. at

*6. Following Michigan’s claim preclusion doctrine, the court held that because the § 1983

16

test for determining whether two claims arise out of the same transaction and are identical

for res judicata purposes is whether the same facts or evidence are essential to the

maintenance of the two actions.” Crawford v. Chabot, 202 F.R.D. 223, 226 (W.D. Mich.

1998) (internal quotations and citation omitted). And “[a]ll facts, allegations, and legal

theories which support a particular claim, as well as all possible remedies and defenses,

must be presented in one action or are lost.” Moore’s Federal Practice 3d § 131.01. See

Adair, 680 N.W.2d at 398 (“[T]he determinative question is whether the claims in the instant

case arose as part of the same transaction as did the claims in [the previous litigation].”).

Under Michigan’s “transactional test,” whether a particular group of facts

amounts to a singular transaction for purposes of res judicata is to be

determined pragmatically, by considering whether the facts are related in

time, space, origin or motivation. Courts employing the transactional test

have generally acknowledged that a new action will be permitted only where

it raises new and independent claims, not part of the previous transaction

based on the new facts. 

McCoy, 2010 WL 841198, at *4.

Defendants have met their burden and established the remaining element of res

judicata—i.e., that the instant claims were or could have been resolved in the state-court

action because they amounted to the same transaction. Here, Plaintiff’s § 1983 and § 1981

claims could have been presented in the state-court action, even though Plaintiff did not

raise such claims. See Darrow v. City of Potterville, No. 08-445, 2008 WL 5382341, at *1

(W.D. Mich. Dec. 22, 2008).8

 The origin of the two actions is the same: both concern the
claim arose from the same basic facts and could have been raised and adjudicated in state

court, the plaintiff could not raise the claim in federal court. Id.

State courts similarly have concurrent jurisdiction over § 1981 claims. Since

Plaintiff’s instant claims, to which state courts have concurrent jurisdiction are based on the

same transaction as the state-court action, the claims are barred by res judicata.

17

alleged violations of Plaintiff’s rights stemming from the same Beach House incident and

the subsequent discrimination and retaliation that allegedly ensued. But for the Beach

House incident, there would be no federal cause of action. Not only were the incidents

linked, but both the federal and state complaints allege retaliatory disciplinary actions

following the Beach House incident. (State Court Am. Compl. at ¶ 14 (“Defendants ...

retaliate[d] against ... Plaintiff for having engaged in protected activity ... which ... included

... issuing phony/trumped up discipline against him.”) (emphasis added).) 

In fact, Plaintiff details how the federal and state claims are inextricably linked in the

Amended Complaint where Plaintiff claims that the retaliation only occurred because the

ELCRA retaliation action was filed, which itself was filed only because the Beach House

incident occurred. (See Am. Compl. ¶ 14.) At the heart of both suits, Plaintiff alleges that

his activities following the Beach House incident were protected activities.

(12) That Michael O’Leary, Plaintiff, engaged in protected activity by

opposing the instruction/order to “shut them down” just because they were

a black-owned business catering to black clientele. This is clearly “engaging

in protected activities.”

(14) That Defendants herein did retaliate against Michael O’Leary, Plaintiff,

for having engaged in protected activity within the meaning of the aforesaid

ELCRA law.

(State Court Am. Compl. ¶¶ 12, 14.)

(21) That Michael O’Leary, Plaintiff, engaged in protected activity under the

First Amendment when he raised matter of public concern, and, further, when
 9

 In Dubuc, the court held that because the plaintiff could have—and did—raise the

relevant federal claims in state court, he was unable to relitigate the federal claims in a

separate federal action due to claim preclusion. Dubuc, 312 F.3d at 750. Even though the

state-court action was dismissed because of the failure of the plaintiff to comply with court

orders, this still satisfied the requirements that the relevant claims must have been

resolved, and the decision based on the merits. Id. 

The court in Buck, like Dubuc, held that the plaintiff’s claims were precluded because

many of the factual allegations in the federal suit were identical to those in the plaintiff's

state-court action, and specifically included retaliation claims which arose after the statecourt complaint had been filed. Buck, 597 F.3d at 817. Because Michigan imposes a duty

upon plaintiffs to supplement their complaints with allegations developing during the

pendency of the action, the plaintiff was barred by claim preclusion from raising the

supplemental claims in a later federal action. Id.

18

he petitioned them for redress by filing documents, including but not

necessarily limited to, his State Court ELCRA retaliation claim.

(22) That specifically, when and because Michael O’Leary engaged in

protected activity, as aforesaid, Defendants retaliated against him.

(Am. Compl. ¶¶ 21-22.) Both complaints identify the same factual nexus involving the

discrimination alleged by Plaintiff and adjudicated in the state-court action. Thus, it is

impossible to separate the federal claims from the state claims as Plaintiff attempts to do.

Both complaints also rely on virtually identical facts, and, with the exception of Tucker,

the same defendants have been named in both actions. Moreover, Plaintiff stipulated “that

all of the discovery heretofore taken in the State case can and should be used as discovery

in the Federal Court case, which means there will be no further discovery to be taken in this

Federal Court case.” (Pl.’s Resp. at 20.) See Dubuc, 312 F.2d at 750; Buck v. Thomas M.

Cooley Law School, 597 F.3d 812, 817 (6th Cir. 2010).9

 Because the state-court complaint

included specific allegations of retaliatory conduct in response to Plaintiff’s engaging in

what he believed was protected behavior—which is identical to the structure of the federal
19

allegations—Plaintiff’s federal retaliation claims comprise the same transaction as his

ELCRA retaliation claims, and should have been raised in the state-court action.

It is also well settled in Michigan that a plaintiff alleging claims of retaliatory conduct

for filing a lawsuit must amend his initial complaint if final judgment has not already been

rendered on that initial claim. Dubuc, 312 F.3d at 750; Buck, 597 F.3d at 817.

When the alleged additional manifestation of retaliatory animus occurs before

adjudication on the merits of the initial suit, however, the victim is obliged to

amend his or her initial complaint to add these new allegations.

Dubuc, 312 F.3d at 750. Here, Plaintiff could have amended, or at least attempted to

amend, his complaint in the state-court action and did not even though the state-court

complaint specifically alleged that “Defendants ... retaliate[d] against ... Plaintiff for having

engaged in protected activity ... which ... included ... issuing phony/trumped up discipline

against him.” (State Court Am. Compl. ¶ 14 (emphasis added).) 

Plaintiff had sufficient time during which he could have amended his state-court

complaint to include the instant claims, and the record is devoid of any allegations that the

state court refused to hear these claims. Plaintiff first learned of these disciplinary notices

on April 8, 2009, just three weeks after filing his first amended complaint the state-court

action, more then four months before the discovery cut-off date and seven months before

summary disposition was granted in that action. Plaintiff also deposed Tucker about these

documents and plan of retaliation during discovery in the state-court action. In fact,

Tucker’s July 2009 deposition testimony, taken in relation to the state-court action, was

related primarily to the issue of the November 2008 disciplines. (See Defs.’ Reply, Ex. 1.)

Although Plaintiff failed to amend his state-court complaint, he did, however, affirmatively

rely on these November 2008 discipline notices throughout the state-court action. (Defs.’
20

Mot. at 8-9.) For example, during the hearing on Defendants’ dispositive motion, Plaintiff’s

counsel asserted that the November 2008 notices were evidence of retaliation:

There’s the three disciplines. Okay. Two are totally bogus and there’s no fact

basis for them and the other one is a violation of the standard operating

procedure ...

He creates a position for his underlin[g] Tracy Tucker ... He creates a position

of economic enhancement guru supervisor ... She somehow ends up writing

three disciplines against [Plaintiff] that would have given him 44 days off.

(Defs.’ Mot., Ex. 5, Hr’g Tr. Oct. 26, 2009 at 63-65.) Plaintiff also relied on the November

2008 disciplinary notices as evidence of retaliation in his appeal brief to the Michigan Court

of Appeals.

On 11/27/0[8], Defendant Carlton, through his political ally, Tracey Tucker

(whom Defendant Carlton created a job for), concocted three secret

disciplines against Plaintiff ... with 44 days of suspension.

(Defs.’ Mot., Ex. 6, Pl.’s Appeal Br. at 13.) 

Moreover, the state court was already familiar with the facts and evidence which

formed the basis of these claims, and it would not have been a significant imposition on

Plaintiff, Defendants or the court the have had these additional allegations included in a

second amended complaint in the state-court action. This is simply not a case where

Defendants discriminated or retaliated against Plaintiff after the state-court action had

issued a final decision nor it is a case where Plaintiff became aware of additional

unconstitutional conduct, occurring before the state-court action had ended, after the case

had closed. The Court accordingly finds that the final element, requiring that the matter in

the second case was resolved, or could have been resolved, in the first case, is also

satisfied here. 
 10 As the Court is dismissing Plaintiff’s claims on other grounds, it need not address

Defendants argument that the Younger and Colorado River abstention doctrines also merit

dismissal.

21

All elements of claim preclusion, as defined by Michigan law, are satisfied, and

Plaintiff’s claims are accordingly dismissed.10

IV. Conclusion

For the foregoing reasons, Defendants’ motion for summary judgment is hereby

GRANTED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: July 21, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on July 21, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager