Welch v. City of Melvindale, Case No. 18-cv-11450

MICHAEL WELCH, Plaintiff, v. CITY OF MELVINDALE, a political subdivision of the State; MELVINDALE PUBLIC SAFETY COMMISSION,a political advisory body of the City of Melvindale; JEFFERY BOLTON, KEVIN MCISAAC, MARTHA MCDANIEL,PATRICIA HALL, and LAWRENCE COOGAN, individuals,sued in their official and personal capacities, Defendants.

Case No. 18-cv-11450

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

December 20, 2019

Honorable Laurie J. Michelson

Magistrate Judge Mona K. Majzoub

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [38, 39]

Plaintiff Michael Welch served as a police officer in Melvindale, Michigan, for over 20 years. In 2016 Welch gave sworn testimony in support of Melvindale Police Chief Chad Hayse during Hayse's termination hearing. Welch was accused of lying during his testimony and charged with disciplinary violations, which resulted in a negotiated settlement of a 30-day suspension without pay. In 2018 Welch gave a deposition in Hayse's civil lawsuit and was again accused of lying by the city attorney and the Melvindale Public Safety Commission (the "Commission").

Welch brought this lawsuit alleging that his employer—the City of Melvindale ("the City")—members of the Commission, and City Attorney Lawrence Coogan conspired and retaliated against him for his testimony in support of Hayse. Welch also claims that he was denied due process leading up to his 2016 suspension. Welch separately brings state-law claims of defamation and tortious interference against Coogan.

The Defendants now seek summary judgment on all claims. Welch opposes the motions and the Court heard oral argument on November 22, 2019. For the reasons that follow, the Court grants in part and denies in part the Defendants' motions. Welch's claim of First Amendment retaliation relating to his 2016 suspension and his defamation claim will proceed to trial. Welch's other claims are dismissed.

I.

When, as here, defendants seek summary judgment, the Court presents the facts in the light most favorable to the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Welch began working at the Melvindale Police Department in 1998. (ECF No. 24, PageID.1089.) Welch worked his way up through the ranks and became a lieutenant in 2014. (Id.) The terms, benefits, and conditions of Welch's employment are governed by a collective bargaining agreement (CBA) between the City and the police union. (ECF No. 42-45, PageID.5544.)

Welch alleges that his troubles at work began around 2015 when he tried to rein in the behavior of a subordinate, Melvindale Police Corporal Matthew Furman. (ECF No. 42, PageID.3470.) After Furman received dozens of citizen complaints alleging improper enforcement of the traffic code, verbal and physical abuse, and racial profiling, Welch and Chief Hayse decided Furman's behavior needed to be addressed. (Id. at PageID.3470.) In July 2016, Chief Hayse made it known that he planned to terminate Furman. (Id. at PageID.3472.)

In August 2016, disciplinary proceedings were initiated against Chief Hayse for a number of issues, including improperly disciplining Furman, interfering with the city's towing contract, and publicly making derogatory remarks about city officials. (ECF No. 38, PageID.1227; ECF No. 38-2, PageID.1306-1308; 1398-1399; ECF No. 38-3, PageID.1503.) Welch alleges that the City Council wanted to terminate Hayse to protect Furman. Welch believes Furman "single-handedly generated tens-of-thousands of dollars in revenue for the City" by having large numbers of cars towed and so the City Council had reason to protect him. (ECF No. 42, PageID.3468.)

The City Council held a termination hearing for Chief Hayse on August 29 and 30, 2016. (See ECF No. 38-2; ECF No. 38-3.) Hayse called Welch as a witness in support of his contention that the City's allegations of misconduct against him were false and that he had not publicly made derogatory comments about city officials or the city's contracted towing company, Goch & Sons Towing. (ECF No. 42, PageID.3473.)

Under oath, Welch testified as follows:

Q (By Hayse): Lieutenant, have you ever heard me make disparaging remarks regarding any public official, appointed official, or Michael Goch from Goch & Son's Towing?

A (Welch): No direct. We've had personal conversations in regards to the way the tow contract had been warranted, but no personal attacks in front of anybody else in personal conversation, yes.

Q: Never heard me come up to the front desk and make any sort of announcement or disparaging remark about not towing vehicles because Goch & Son's was our tow provider as of June of 2015?

A: Absolutely not. In fact, you had offered an incentive to officers to tow cars.

(ECF No. 42-23, PageID.4663.) On cross-examination, Welch further testified:

Q: Okay. And did—in this personal conversation that you say you had with the chief in regards to Goch & Son's, did he say any derogatory things about Goch & Son's?

A: No.

Q: Okay. So what other officers have testified in regards to negative comments as to Goch & Son's being made by the chief of police, you're saying you have not heard those comment[s], correct?

A: No, I have not.

Q: You haven't heard that comment from any other officers.

A: From any other officers—

Q: Yeah.

A: —or from Chief Hayse?

Q: Have any other officers told you that Chief Hayse made those statements?

A: No, they have not.

(ECF No. 42-23, PageID.4664.)

Defendants argue that testimony by other witnesses directly contradicted Welch's testimony. Two officers testified that Hayse had referred to the mayor using derogatory terms such as "bitch" and had called both the mayor and the city attorney corrupt. (ECF No. 38-3, PageID.1508-1510, 1514.) One of the officers further testified that Welch made similar comments. (Id. at PageID.1515.)

At the end of the second day of the hearing, one of the council members noted the discrepancy, stating that "Lieutenant Welch testified yesterday that he's never heard [Hayse] say anything derogatory, and I'm thinking that today's testimony says otherwise." (ECF No. 42-23, PageID.4692.)

On September 7, 2016 the chairman of the Commission, Jeffrey Bolton, signed a document entitled "Complaint for Suspension, Demotion and/or Termination of Michael Welch." (ECF No. 38-4, PageID.1548.) In his deposition, Bolton stated that he did not initiatethe idea of disciplining Welch, but that he could not remember who did. (ECF No. 42-41, PageID.5377.) Bolton also testified that city attorney Coogan was the person who drafted the complaint, and Bolton simply signed it. (ECF No. 42-4, PageID.3697.) The complaint states the reasons for discipline included "lying to Mayor and City Council at a public hearing on or about 8/29/2016." (ECF No. 38-4, PageID.1548.) Other reasons included "making unprofessional comments in the presence of subordinates," "violation of Melvindale Police Department Rules and Regulations," and "Violation of Operating Policy of the Melvindale Police Department." (Id.)

Welch testified that when he received the complaint he contacted his union representatives and then prepared his own written statement. (ECF No. 38-5, PageID.1596, 1606.) Welch was not given an opportunity to review his testimony from the Hayse hearing before his trial board hearing on the complaint in front of the Commission. (ECF No. 38-5, PageID.1605.)

Before the hearing, Welch's union representatives suggested he seek a suspension to save himself from potential termination. Because Chief Hayse had just been terminated by the Commission, Welch believed that the Commission also intended to terminate him. (Id. at PageID.1616-1617.) Welch believed that the Commission intended to fire him no matter what he said at his trial board hearing. (ECF No. 42-18, PageID.4512.)

The trial board hearing was scheduled for September 13, 2016. Defendants Jeffrey Bolton, Kevin McIsaac, Martha McDaniel, and Patricia Hall were members of the Commission at this time. There was one additional Commission member who is not a party to this lawsuit.

Union representatives and a union attorney were present at the hearing with Welch. (ECF No. 38-5, PageID.1612.) At the beginning of the hearing, Canfield, one of the unionrepresentatives, suggested the situation could be resolved with a suspension. (ECF No. 38-5, PageID.1614.) At this point, at least two members of the Commission called for Welch to be terminated. (Id. at PageID.1617.) The union representatives and members of the Commission negotiated for about 20 minutes. The Commission offered a 30-day suspension if Welch agreed not to file a union grievance and to testify truthfully at any upcoming depositions. (Id. at PageID.1622.) The union representatives suggested Welch accept the offer, and he did. (Id.) Welch asserts that he only accepted the suspension "to not mess up my pension and not be able to keep a roof over my kids' heads." (ECF No. 42-18, PageID.4512.)

After accepting the offer, Welch read a written statement to the Commission. Welch said that during his testimony in Hayse's hearing, he "felt like a deer in headlights and blanked out on most of the questions" (ECF No 38-6, PageID.1691) and that he could not remember most of the questions or the answers that he had given. He further explained that Chief Hayse had said negative things to him about Mike Goch and the mayor. He said that "Hayse would vent to me at times." (Id.) He said these conversations happened in Hayse's office or at the front desk where Welch worked. Welch finally stated: "I had no intent to lie to or to deceive the City Council. Any misstatements were due to the stress of the situation where I blanked during questioning." (Id. at 1692.)

To this day, Welch asserts that he never lied under oath and that his written statement to the Commission did not recant or contradict any of his prior sworn testimony. (ECF No. 42-18, PageID.4512.)

Welch served his 30-day suspension and returned...