Gorbe v. City of Lathrup Vill.

1

MICHAEL GORBE, EDWARD SHARGABIAN, and TYRON RUCKER, Plaintiffs-Appellants, v. CITY OF LATHRUP VILLAGE, WILLIAM ARMSTRONG, and SCOTT MCKEE, Defendants-Appellees.

No. 356801

Court of Appeals of Michigan

January 19, 2023

UNPUBLISHED

Oakland Circuit Court LC No. 2019-178213-CD.

Before: Michelle M. Rick, P.J., and Colleen A. O'Brien and Sima G. Patel, JJ.

PER CURIAM.

Plaintiffs formerly worked as police officers for defendant city of Lathrup Village (the "City"). They brought this employment discrimination action against the City and individual defendants William Armstrong and Scott McKee, each of whom served as Chief of Police during plaintiffs' employment. Plaintiffs alleged claims for age and race discrimination under the Elliott Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq., unlawful retaliation under the ELCRA, and violation of the Whistleblowers Protection Act (WPA), MCL 15.361 et seq. The trial court granted defendants' motions for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) and dismissed all of plaintiffs' claims. Plaintiffs appeal as of right.^[1] We affirm.

I. BACKGROUND FACTS

All three plaintiffs were officers on the City's police force while defendant Armstrong ("Armstrong") was the chief of police. Although Armstrong remained chief of police until December 2016, plaintiffs contended that he essentially allowed McKee to run the police department and that it was McKee's plan to eliminate older officers in the department and replace them with younger, new officers fresh from the police academy. After Armstrong retired as chief of police in December 2016, he was replaced by McKee.

Plaintiff Tyron Rucker is African-American. Plaintiffs Michael Gorbe and Edward Shargabian are both Caucasian. Defendant Armstrong is also African-American, whereas defendant McKee is Caucasian. All three plaintiffs were over the age of 40 years when their employment with the City ended in 2016 and 2017.

Rucker originally became a part-time officer in 2006, and was promoted to a full-time position in 2009. According to Rucker, Armstrong told him at that time that McKee did not want to promote him, and instead favored promoting another officer, Michael Zang, who was young and Caucasian. In 2015, Zang and Rucker applied for two open sergeant positions. Zang was offered one of the positions after taking written and oral examinations. Although Rucker also took the written examination for the sergeant's position, he was not able to complete the oral examination in 2015 because his employment was terminated in July 2015. It was alleged that Rucker failed to follow departmental policy when investigating a reported breaking and entering at a business and then lied to his superiors about whether he fully searched the premises. Rucker challenged the decision and in March 2016, an arbitrator ordered Rucker's reinstatement. Although the arbitrator found that Rucker violated departmental policy and neglected his duties, he concluded that the facts did not support termination of Rucker's employment under the City's policy of progressive discipline. The arbitrator also found that Rucker did not lie to his superiors because he corrected his initial responses about whether he conducted a full search of the premises. Before then, Rucker's last discipline was a one-day suspension for driving a department vehicle into a flooded area in August 2014.

When Rucker returned to work in 2016, he was permitted to take the oral examination for the sergeant's position, but he was informed that the City would not be filling that second position due to budget constraints. Rucker filed a complaint with the Equal Employment Opportunity Commission (EEOC) over the refusal to promote him to the sergeant position.

Armstrong retired and McKee took over as chief of police. McKee suspended Rucker in January 2017 for not properly seeking a leave of absence for three consecutive days of missed work. In August 2017, McKee conducted a competency hearing on Rucker's unsatisfactory job performance involving a number of matters. As a result of that hearing, the union representative agreed that Rucker should undergo some remedial training because of an incident in which he failed to discover a knife on a suspect when conducting a pat-down search. Shortly thereafter, Rucker filed another complaint with the EEOC for discrimination and retaliation.

In September 2017, Rucker wrote letters to the Oakland County Prosecutor's Office and the Michigan Attorney General. He reported that a fellow officer failed to read a suspect his Miranda^[2] rights before taking a statement from the suspect. In October 2017, Rucker was disciplined for not properly handling an investigation of a breaking and entering at a residence in September 2017, when he did not initially search the entire residence. He was suspended for 15 days in October and November 2017. On November 13, 2017, Rucker submitted his letter of resignation, stating that he felt constructively discharged because of the way he had been treated because of continuing discrimination in the department. Rucker brought claims for age and race discrimination, retaliation in violation of the ELCRA, and violation of the WPA.

Plaintiff Michael Gorbe was hired as a full-time officer in 2005. Gorbe described a history of problems working within the police department, including McKee's conduct and plan to rid the department of older employees to replace them with younger hires. On March 23, 2016, Gorbe responded to a call involving a Southfield police officer. McKee informed Gorbe that he was going to be suspended for three days for going outside the City's limits to respond to that call. However, Gorbe's physician placed him on a medical leave of absence, which Armstrong approved. While Gorbe was on his leave of absence, he made complaints to the City about the police department, including attempts to get rid of older officers in favor of younger hires. Gorbe also filed a complaint with the EEOC for age discrimination. The City hired outside counsel to investigate Gorbe's claims of discrimination and unfair treatment. A report issued in July 2016 found no evidence that Gorbe's treatment was due to his age.

In September 2016, Gorbe was notified that he had no more available leave time. Andrew Potter became the new city administrator in November 2016. Pursuant to a collective-bargaining agreement (CBA), Gorbe was sent for a psychological evaluation by Linda K. Forsberg, Ph.D., who found that he was fit and able to return to work. On November 17, 2016, Armstrong notified Gorbe by letter that he was to return to work on November 21, 2016, or he would be deemed to have resigned his position. Gorbe did not return to work as directed and Armstrong turned the matter over to Potter to handle. A hearing was scheduled for November 29, 2016, on Gorbe's failure to return to work. On that date, Gorbe produced a letter from his physician, stating that he was unable to work until further notice due to post-traumatic stress disorder, psychophysiological insomnia, and elevated blood pressure. On December 5, 2016, the City notified Gorbe that his employment was terminated because he failed to return to work as scheduled and his doctor's note provided no reasonable likelihood that he would return to work on a timely basis. Gorbe thereafter filed a second complaint with the EEOC, alleging that he was terminated in retaliation for filing the earlier EEOC complaint.

Plaintiff Edward Shargabian worked as a reserve officer in 2007 and was hired as a part-time police clerk in May 2015. His employment was terminated on February 10, 2017, for failure to complete a new background packet after having been granted several extensions. Shargabian brought claims for age discrimination and intentional infliction of emotional distress.^[3]

Plaintiffs originally filed their claims in federal court, but all state claims were dismissed without prejudice, which led to this action. Plaintiffs failed to prevail on their claims in federal court. The federal district court granted defendants' motion for summary judgment and dismissed all claims, and that decision was affirmed by Sixth Circuit Court of Appeals. See Gorbe v City of Lathrup Village, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued March 31, 2021 (Docket No. 17-11782); Gorbe v City of Lathrup Village, unpublished order of the United States District Court for the Eastern District of Michigan, entered April 21, 2021 (Docket No. 17-11782); Gorbe v City of Lathrup Village, unpublished order of the United States Court of Appeals for the Sixth Circuit, entered April 28, 2022 (Docket No. 21-1532).

In the instant state action, defendants filed separate motions for summary disposition against each plaintiff. Follow a hearing, the trial court took the matter under advisement. The court later issued an opinion and order granting defendants' motions under MCR 2.116(C)(10) (no genuine issue of material fact) and dismissed all claims. This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665. A motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160. "When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion." "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Id. (quotation marks and citation omitted). Summary disposition is appropriate when there is no genuine issue of a material fact and the...