Hemelberg v. City of Fraser

MATTHEW HEMELBERG, Plaintiff, v. CITY OF FRASER, WAYNE O'NEAL, MICHAEL CARNAGIE,KATHY BLANKE, and MICHAEL LESICH, Defendants.

CASE NO. 18-CV-12196

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

January 17, 2019

HON. GEORGE CARAM STEEH

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (Doc. 9)

I. Overview

Plaintiff Matthew Hemelberg, former Council member of the City of Fraser, who was removed by majority vote of the City Council following a tribunal hearing regarding sexual harassment claims against him, alleges his removal was in retaliation for his opposition to a tax increase in violation of his First Amendment rights pursuant to 42 U.S.C. § 1983, and in violation of the Michigan Constitution on the grounds that only the governor can remove an elected City Council member from office. Now before the court is Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or for summary judgment. Because Plaintiff has already litigated the subject matter of this lawsuit in state court against the same parties and their privies, and based on the doctrine of res judicata, Defendants' motion for summary judgment shall be granted.

II. Background

Plaintiff Matthew Hemelberg was elected as a Council member in the City of Fraser in November 2013. (Doc. 1, ¶¶ 4,11). In 2017, Defendant City Manager Wayne O'Neal observed Plaintiff massaging the shoulders of the City librarian, Loretta McDowell. (Doc. 9, Ex. 4 at PgID 143). O'Neal spoke to McDowell about the incident, and she told him the touching was unwanted. Id. After her complaints, and others against the City Mayor, and after hearing "some rumblings" from other employees, O'Neal hired attorney Thomas Fleury in May, 2017 to investigate Plaintiff and Mayor Nichols regarding whether they had sexually harassed employees. Id. at PgID 143-44.

Plaintiff challenges O'Neal's motives in initiating the investigation. He alleges that when O'Neal became Interim City Manager, he threatened Plaintiff that unless he ceased his opposition to the tax increase which four other Council members supported, he would remove him from office. Plaintiff further claims that Defendant Council member Michael Carnagiealso threatened Plaintiff that City Council would remove him from office unless he ceased his opposition to the five mill tax increase. Plaintiff claims O'Neal orchestrated an effort to remove him by encouraging female employees to bring forward bogus claims of sexual harassment.

O'Neal, on the other hand, claims he was motivated to pursue an investigation because he witnessed Plaintiff massaging the shoulders of the City's librarian which appeared to be unwelcome. Fleury interviewed eight City employees and prepared a 16-page report that was later used as an exhibit at the tribunal hearing regarding Plaintiff's removal from office. (Doc. 9, Ex. 4 at PgID 136, Ex. 6). Around this same time, on June 8, 2017, Council member Kathy Blanke moved to approve a resolution to levy the five mill tax assessment, which Plaintiff, Council member Foster, and Mayor Nichols opposed, thus sealing its demise because the Council was unable to garner the five votes needed to raise taxes. (Doc. 12, Ex. 5 at PgID 647). On June 12, 2017, the City Council voted to retain Fleury to give his opinion and report in a closed session. (Doc. 9, Ex. 7 at PgID 210). After Fleury gave his report at the closed session, the Council voted to proceed with a tribunal hearing to consider Plaintiff's removal. (Doc. 9, Ex. 8 at PgID 217-218).

The tribunal hearing was scheduled for September 18, 2017. Prior to the tribunal hearing, on September 8, 2017, Plaintiff and Mayor Nichols filed a petition for a writ of superintending control in Macomb County Circuit Court seeking to enjoin the tribunal hearing from going forward, and seeking a temporary restraining order. (Doc. 9, Ex. 12). In that petition, Plaintiff argued that the Council lacked the authority to hold a tribunal hearing and argued a violation of due process. Id. Interested parties identified in that petition were the City of Fraser and the Fraser City Council. Id. The Circuit Court denied the petition as premature because the hearing had not yet taken place and denied the motion for a temporary restraining order. (Doc. 9, Ex. 14). The Circuit Court also ruled that the hearing was permitted under the City Charter, id. at PgID 413, the Council gave notice of the charges against them, id. at PgID 414, and O'Neal had authority to hire Fleury prior to Council's vote to retain him. Id. at PgID 415.

The City Council held the tribunal hearing as scheduled. Retired Judge Peter Maceroni presided over the tribunal hearing. (Doc. 9, Ex. 4 at PgID 132). At the hearing, O'Neal and Fleury testified, as well as four female employees. (Doc. 9, Ex. 4). Three females testified against Plaintiff and Mayor Nichols, and one in favor of Plaintiff and Mayor Nichols.Id. Of those, Plaintiff alleges only one accused him of sexual harassment. In fact, Leah Brown testified that Plaintiff commented on her clothing, ogled her, and looked at half naked pictures of women in front of her. Id. at PgID 147-50. Michele Kwiatkowski testified that she witnessed Plaintiff treating Brown inappropriately. Id. at PgID 153-54. Also, Kelly Dolland testified that she overheard Plaintiff and the mayor making inappropriate and lewd comments regarding women on numerous occasions. Id. at PgID 155-56. At the conclusion of the proofs, Council member Defendant Kathy Blanke moved to remove Plaintiff for misconduct which passed by majority vote. Id. at PgID 162. The Council also voted to remove Mayor Nichols. Id. at PgID 162-63. On October 6, 2017, three female employees filed a sexual harassment lawsuit against Plaintiff, the City of Fraser, and Mayor Nichols in Macomb County Circuit Court. (Case No. 2017-003757-CD).

Also, on October 6, 2017, Plaintiff and Mayor Nichols then filed a motion for a writ of superintending control, this time challenging their removal on a myriad of grounds including, among other things: lack of evidence, bias of Council members, violations of due process including inability to cross-examine witnesses, erroneous conclusions, and failure to put forth formal charges or to inform them of the standards for decisionmaking. (Doc. 9, Ex. 15). Plaintiff and Mayor Nichols requested that the Circuit Court reinstate them to their respective offices and also sought an award of attorney fees and costs. (Doc. 9, Ex. 15 at PgID 421). The Circuit Court denied the petition for a writ of superintending control on December 7, 2017. (Doc. 9, Ex. 17). Mayor Nichols appealed (Doc. 9, Ex. 19), but Plaintiff did not. Instead, Plaintiff filed this lawsuit.

This lawsuit arises out of the same transaction and facts as the state court action, yet Plaintiff asserts slightly different legal theories. Here, Plaintiff argues that his removal was motivated by the fact that he, Mayor Nichols, and another Council member resisted efforts by the other four Council members to raise taxes unless there was also an agreement to reduce government spending. Specifically, the Complaint sets forth two counts. Count One alleges that his removal was retaliation for the exercise of his First Amendment rights in opposing the tax increase pursuant to § 1983. Although the Complaint also alleged a due process violation, in the motion papers now before the court, Plaintiff stipulates to dismissing his due process claim. (Doc. 12 at 11 n.2, PgID 562).

Count Two alleges a violation of the Michigan Constitution on the grounds that the City Council lacks the authority to remove him from office, but that only the governor has that power pursuant to Mich. Comp. Laws §168.327. Defendants, on the other hand, argue that Section 5.2 of the City Charter gives the Council the authority to remove a Council member for misconduct.

III. Standard of Law

Defendants move for dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment. Because the court has considered matters outside the pleadings, the court treats Defendants' motion as a motion for summary judgment. Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v. Kentucky Dep't of Transp., 53 F.3d 146, 149 (6th Cir. 1995).

The standard for determining whether summary judgment isappropriate 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 a matter of law.'" Amway Distributors Benefits Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).

If the movant...