Habel v. Township of MacOmb

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0002n.06
Filed: December 28, 2007

No. 06-1491

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

THOMAS L. HABEL; DAVID W. )
HERCZEG; KENNETH G. )
MEERSCHAERT, SR.; GEOFFREY E. )
SMITH, )
) ON APPEAL FROM THE UNITED
Plaintiffs-Appellees, ) STATES DISTRICT COURT FOR THE
) EASTERN DISTRICT OF MICHIGAN
v. )
)
TOWNSHIP OF MACOMB, )
)
Defendant, )
)
JOHN D. BRENNAN; MICHAEL D. )
KOEHS; RAYMOND A. AHONEN,

Defendants-Appellants.

Before: KEITH and ROGERS, Circuit Judges; and ALDRICH, District Judge.*
Rogers, Circuit Judge. This interlocutory appeal from the district court’s denial of qualified

immunity involves four township firefighters who claim that the supervisor, clerk, and fire chief of

Macomb Township, Michigan, retaliated against them for public criticism of how the fire department

was run, in violation of their First Amendment right to free speech. The officials moved for

summary judgment on the alternative grounds that the plaintiffs’ constitutional rights were not

*
The Honorable Ann Aldrich, United States District Judge for the Northern District of Ohio,
sitting by designation.
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Habel v. Macomb
violated and that the individual defendants were entitled to qualified immunity. The district court

denied the officials’ motion, finding that the officials were not entitled to qualified immunity, and

that there was a genuine issue of material fact as to whether the plaintiffs’ constitutional rights were

violated. Only the question of qualified immunity is now before this court. On the present record,

the officials are not entitled to qualified immunity, and the district court therefore properly denied

summary judgment on that ground.

This lawsuit was brought by Thomas L. Habel, David W. Herczeg, Kenneth G. Meerschaert,

and Geoffrey E. Smith, four current and former firefighters with the Macomb Township Fire

Department. The defendants are John Brennan, the township supervisor, Michael Koehs, the

township clerk, and Raymond Ahonen, the township’s fire chief.

Plaintiff Meerschaert alleged that he was subjected to discipline, including a 45-day

suspension, for activity that included voicing public concerns to township officials and the media.

Meerschaert was first hired as a part-time firefighter in 1981. In 1990, he became a full-time

firefighter with the rank of maintenance sergeant, a position he held until 1995, when he was

promoted to captain. Upon the recommendation of Chief Ahonen, he was promoted to assistant

chief in 2000. He and Ahonen initially had a good relationship, as they both shared the same goals

for the fire department. They also shared similar concerns, such as firefighter training issues, the

response times of the ambulance company, the response times of the fire company, and firefighter

safety. Meerschaert was particularly concerned about training because he believed that the absence

of a significant number of firefighters from training sessions posed a danger to public safety. He and

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his co-plaintiffs were also concerned about defective fire fighting equipment and a lack of manpower

in the department.

Meerschaert’s relationship with Ahonen began to deteriorate after an emergency incident

involving Meerschaert’s daughter-in-law in 2002. Meerschaert’s daughter had placed an emergency

call stating that his daughter-in-law was choking and could not talk or breathe. An ambulance

responded, but no responders from the fire department ever arrived. Meerschaert’s distress over that

incident was accentuated shortly thereafter when a firefighter tried to adjust the height of a hydraulic

ladder while it was in use during a fire, thereby nearly causing a severe injury to the firefighter who

was climbing on it. Those incidents spurred Meerschaert to speak out publicly and privately about

his concerns. He suggested to Ahonen that they speak to the entire township board, but Meerschaert

claims that Ahonen replied that he would not speak to the board because he was afraid of Brennan

and could not afford to get fired.

Without Ahonen by his side, Meerschaert took his concerns to several township officials,

including Brennan and Koehs. He also spoke to the media and to the community in general, urging

the citizens of the township to tell their elected officials that the township needed more fire fighters

and better ambulance response times.

On October 28, 2002, Meerschaert attended a township meeting to voice his concerns, but

he felt compelled to leave the meeting because of the hostility exhibited toward him by Brennan.

Meerschaert contends that within two days he was subjected to the following disciplinary actions:

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1) he was disciplined for not signing off over the air; 2) he was reprimanded for taking records to

the meeting; 3) he was transferred to another station; 4) he was denied access to a computer that he

needed to perform his job duties as the trainer for on-call firefighters; 5) he was denied use of a

department vehicle; 6) he was required to report to a subordinate; 7) all of his keys were taken away

from him; and 8) he was denied access to files that he needed to perform his job. That was the first

time in Meerschaert’s 22 years as a firefighter that he had ever been disciplined.

At some point shortly after being subjected to those disciplinary actions, Meerschaert and the

other plaintiffs prepared a flyer addressing their concerns and distributed it to residents of the

township. At the next meeting of the township board, on November 13, 2002, Brennan said that he

was extremely angry about the flyer.

On November 14, 2002, Meerschaert was the only firefighter on duty in his station when an

emergency call came in. The dispatcher did not give a clear address, and as Meerschaert waited for

a clarification, two other firefighters arrived at the station. As the superior officer, Meerschaert made

the decision that those firefighters would respond to the call while he waited for a clarification of the

address, presumably so that he could then relay it to them. Meerschaert claims that the fire

department’s policy has always been that neither the chief nor the assistant chief is required to

respond to every call so long as the call is covered. The defendants claim that Meerschaert shirked

his duty because his shift was about to end, and he wanted to be able to leave as soon as it was over

so that he could take his wife to a doctor’s appointment. Approximately one month after this

incident, Meerschaert was informed that he was being suspended for 45 days for his failure to

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respond to the emergency call. He considered the suspension to be career-ending, so he decided to

resign rather than accept it.

Plaintiff Habel similarly claims that he was subjected to retaliation, including suspension

from the fire department, for publicly airing concerns about the fire department and its policies. Like

Meerschaert, plaintiff Habel had a good relationship with Ahonen initially. Habel joined the

Macomb Township Fire Department as a part-time firefighter in 1982. In 2000 or 2001, Chief

Ahonen recommended that he be promoted to lieutenant, and the township board accepted that

recommendation. Habel’s relationship with Ahonen soured, however, when Habel began to voice

concerns about the need for more personnel, stricter enforcement of training requirements, more

safety education, and improved response times. He addressed his concerns to Ahonen, Brennan, and

Koehs, as well as to the community via the print and broadcast media.

Habel claims that the first instance of retaliation against him occurred when he was not

invited to the 20-year employee award ceremony in November of 2002. The next allegedly

retaliatory act occurred on January 9, 2003, when Ahonen told Habel to come to his office to discuss

a disciplinary action that might be taken against him. The meeting occurred on January 15, 2003,

and the subject of the meeting was Habel’s public remarks about the fire department. Ahonen

warned Habel that he would be punished if he did not stop making derogatory remarks about Ahonen

and the department. Because Ahonen refused to tell Habel what derogatory remarks he had allegedly

made, Habel asked Ahonen to “take the gloves” off so that they could speak candidly. Ahonen

quickly announced that he considered Habel’s request to be a personal threat.

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The next day, Habel was at the fire station talking to John Martin, another firefighter, when

Ahonen arrived. Ahonen interrupted their conversation and refused to return Habel’s greeting. After

Ahonen finished speaking with Martin, he turned to leave the fire station, and Habel said, “Chief,

you drive careful out there.” Ahonen apparently interpreted that to be a threat as well because he and

his co-defendants filed a police report against Habel for threatening violence against him. Later that

evening, Habel was informed that he had been suspended from the Fire Department. He appealed

his suspension and was eventually reinstated in October of 2003 following arbitration.

Plaintiff Herczeg alleges that his employment as a firefighter was terminated for voicing his

concerns about the fire department. Herczeg was hired in January of 2001 as a probationary

firefighter, meaning that he was essentially an at-will employee. He too got along well with Ahonen

at the beginning of his employment. In fact, Ahonen told him that he was a good employee and a

rising star. Herczeg even received a life-saving award from the fire department. The chief’s attitude

toward Herczeg changed in the fall of 2002 though. Herczeg claims that their relationship soured

partly because he spoke out to other firefighters and a member of the township board about

Herczeg’s belief that the fire department needed more men and more training. Herczeg also

contends that their relationship went downhill because he was known to associate with the

individuals who are his co-plaintiffs in this case. In October of 2003, Ahonen informed Herczeg that

Ahonen was going to recommend that the township board terminate Herczeg. The board adopted

the recommendation, and Herczeg was terminated.

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The fourth plaintiff, Smith, asserts that he was subjected to numerous forms of retaliation,

such as disciplinary charges and reduced income, because of his decision to speak publicly about

problems within the fire department. Smith was hired by the township board as a part-time

firefighter in February of 2000 on the recommendation of Chief Ahonen. Smith got along well with

Ahonen until 2002, when Smith started to share with the public his concerns about the fire

department, which were the same concerns as his co-plaintiffs. From the summer of 2002 until the

end of 2003, Smith spoke frequently to citizens and the media about issues within the fire department

that had a direct impact on public safety. He also voiced those concerns directly to Ahonen,

Brennan, and Koehs.

Smith claims that Ahonen took several measures to silence him, including restricting the

number of emergency runs that he could make, shunning and isolating him, and forcing him to

request permission to leave a scene from a less senior firefighter. Smith also alleges that Ahonen

brought disciplinary charges against him in order to discourage him from speaking. Smith contends

that a total of six disciplinary charges were levied against him throughout 2003 and 2004. He was

also removed from a platoon role, which caused him to go on fewer runs, and thereby earn less

wages. Those actions made Smith fearful of additional retaliation, so he stopped airing his concerns.

After he was passed over for a full-time position with the Macomb Township Fire Department, he

resigned and accepted a full-time position with another fire department.

In July of 2004, the plaintiffs filed a lawsuit in which they claimed, among other things, that

the defendants had violated their First Amendment rights by subjecting them to adverse employment

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actions in retaliation for exercising their right to free speech. Because the plaintiffs claim to have

been retaliated against as public employees, their speech is protected by the First Amendment only

if it addressed a matter of public concern, see Connick v. Myers, 461 U.S. 138, 146 (1983), and its

value outweighed the government’s interest in the orderly and efficient operation of official

functions. See Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will County Ill., 391 U.S. 563,

568-69 (1968). Therefore, after extensive discovery, the defendants filed a motion for summary

judgment on the ground that a jury could not reasonably conclude that the defendants had retaliated

against the plaintiffs in violation of the First Amendment because the plaintiffs had not spoken on

a matter of public concern. In the alternative, the defendants asserted that they were entitled to

qualified immunity. The district court rejected both of those arguments, finding that the defendants

were not entitled to qualified immunity and that there were genuine issues of material fact with

respect to whether the defendants had violated the plaintiffs’ First Amendment rights. The

defendants then filed an interlocutory appeal on the issue of qualified immunity.

The district court properly determined that the defendants are not entitled to qualified

immunity. Qualified immunity protects government officials performing discretionary “insofar 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). Because

the plaintiffs spoke on matters of public concern, their speech was protected by the First

Amendment. Therefore, any retaliation based on the plaintiffs’ speech was a violation of the First

Amendment. Furthermore, this court’s decision in Chappel v. Montgomery County Fire Protection

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Dist. No. 1, 131 F.3d 564 (6th Cir. 1997), demonstrates that any such violation was a violation of

the plaintiffs’ clearly established rights. As a result, the defendants are not entitled to qualified

immunity.

The plaintiffs’ speech constituted speech on a matter of public concern. The plaintiffs all

shared their concerns about the fire department’s safety and training problems with members of the

public. Among other actions, they created a flyer criticizing the safety and training problems of the

fire department and circulated it in the community. Such speech addresses a public concern; it is

almost identical to speech in Chappel that this court held to be protected. See id. at 578-79. In

Chappel, a firefighter/paramedic perceived problems within the fire department on the issues of

nepotism, inadequate training, and inadequate standard operating procedures. See id. at 568. The

plaintiff in that case discussed his concerns privately with the Montgomery County Judge/Executive

and other community members, and he also discussed them publicly at meetings of the fire and

ambulance boards and the Montgomery County Fiscal Court. See id. at 568-69. Like the plaintiff

in Chappel, the plaintiffs here have engaged in public and private discourse with regard to problems

within the fire department that affect public safety. As the Chappel court held, speech on matters

of public safety is “near the zenith of public concern.” Id. at 578 (quotations omitted). The issues

discussed by the plaintiffs were not just issues of workplace politics, as the defendants claim.

Instead, they were issues that had a direct impact on the health and safety of the community. Thus,

the plaintiffs’ speech in this case touched on a matter of public concern just as the speech at issue

in Chappel did.

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Moreover, the retaliatory acts allegedly taken by the defendants were sufficient to violate the

plaintiffs’ clearly established rights. Indeed, Chappel determined, under almost identical facts, that

the defendants had violated the plaintiff’s clearly established rights because “[a]ll public officials

have been charged with knowing that public employees may not be disciplined for engaging in

speech on matters of public concern.” Chappel, 131 F.3d at 580. Because the issues that were

addressed by the plaintiffs’ speech in this case were clearly matters of public concern, no reasonable

official could dispute that retaliating against the plaintiffs on the basis of their speech was a violation

of their constitutional rights. At the very least, the contours of the plaintiffs’ rights were sufficiently

clear that reasonable officials in the defendants’ positions would have understood that their actions

amounted to a violation of those rights. See Anderson v. Creighton, 483 U.S. 635, 640 (1987).

The defendants have argued extensively that there is no evidence that they actually violated

the plaintiffs’ rights. Specifically, they argue that the plaintiffs have presented no evidence to prove

that any action taken by the defendants was motivated by the plaintiffs’ speech. This court has no

jurisdiction to hear those arguments in the context of this case because those arguments are

essentially factual disputes. See Johnson v. Jones, 515 U.S. 304, 319-20 (1995). In an interlocutory

appeal of a qualified immunity issue, this court has jurisdiction only to review the separable and

abstract issues of law that were determined by the district court’s denial of qualified immunity. See

Chappel, 131 F.3d at 572. In an interlocutory qualified immunity appeal, this court has no

jurisdiction to consider issues that involve “nothing more than whether the evidence could support

a finding that particular conduct occurred.” Chappel, 131 F.3d at 572 (quoting Behrens v. Pelletier,

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516 U.S. 299, 313 (1996)). Accordingly, this court will not address the defendants’ fact-based

argument that the evidence does not support a finding that the plaintiffs’ speech was a motivating

factor in the alleged retaliation.

Finally, reversal is not warranted on the basis of defendants’ additional contention that

Herczeg and Smith never suffered any adverse employment actions. That argument has both legal

and factual aspects. Legally, the issue is whether the actions taken against Herczeg and Smith can

be considered adverse actions as a matter of law. Factually, the issue is whether those actions ever

occurred. The factual issues cannot be considered in this appeal, and the defendants have missed

the mark on the legal issue. In their brief, the appellants analyze numerous incidents involving

Herczeg and Smith and then conclude that none of those incidents constitute an adverse employment

action as a matter of law. With respect to Smith, the nine alleged actions discussed in appellants’

brief, plus the six disciplinary actions brought against him in 2003-04 and not so discussed, together

are legally sufficient to be considered adverse employment actions for retaliation purposes. With

respect to Herczeg, appellants argue that speculation alone connects his termination with protected

conduct. This of course is a factual, not a legal, contention.

For the foregoing reasons, we affirm the decision of the district court and remand the case

for further proceedings.

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