Cavanaugh v. McBride

33 F. Supp. 3d 840, 2014 WL 82616, 198 L.R.R.M. (BNA) 2178, 2014 U.S. Dist. LEXIS 2359
CourtDistrict Court, E.D. Michigan
DecidedJanuary 9, 2014
DocketCase No. 12-15463
StatusPublished
Cited by8 cases

This text of 33 F. Supp. 3d 840 (Cavanaugh v. McBride) is published on Counsel Stack Legal Research, covering District Court, E.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cavanaugh v. McBride, 33 F. Supp. 3d 840, 2014 WL 82616, 198 L.R.R.M. (BNA) 2178, 2014 U.S. Dist. LEXIS 2359 (E.D. Mich. 2014).

Opinion

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

THOMAS L. LUDINGTON, District Judge.

From January 1999 to March 2010, Nicholas Cavanaugh was employed by the County of Otsego as a Sheriffs Deputy. At all relevant times, James McBride was the Sheriff of Otsego County, and Matthew Nowieki served as Undersheriff. Cava-naugh alleges that McBride and Nowieki— and through them, Otsego County — retaliated against him for protected First Amendment- speech. Because Cava-naugh’s speech did not address a matter of public concern, however, his claims are without merit, and the Defendants’ motion for summary judgment will be granted.

I

Cavanaugh began his employment with the Otsego County Sheriffs Department (the “Department”) on January 4, 1999. Between 1999 and 2010, Cavanaugh ’ was disciplined on numerous occasions for unacceptable conduct. At other times, he was commended for conduct that was anything but unacceptable. In their papers, the parties spend an inordinate amount of time with Cavanaugh’s storied work history — Cavanaugh indicating he was a solid Sheriffs Deputy, the Defendants contend[842]*842ing just the opposite — but that issue is not relevant to the questions presented here. So, although the parties would like to debate Cavanaugh’s employment record, the Court will not, as it is unrelated to the primary question framed by the parties’ papers.

A

Sometime in late 2008 or early 2009, Cavanaugh was elected president of his union, representing primarily road-patrol deputies working for the Department. In January 2010, the Department began requiring that all road patrol deputies be trained in the use of a “jump pack,” a device capable of starting a car with a dead battery. After they were trained, the Department required that all road patrol deputies use the jump packs to restart dead batteries in citizens’ cars.

Cavanaugh and his union did not approve. On January 17, 2010, Cavanaugh sent Nowicki a letter indicating that he, and the union, felt that requiring members to use the jump packs was a “direct violation” of the terms of the collective bargaining agreement governing the parties’ relationship. Defs.’ Mot. Ex. U, ECF No. 14. Cavanaugh did not explain precisely why he and the union felt the use of jump packs violated the agreement. Nowicki responded the next day and established that the Department would not budge on requiring the use of jump packs:

It is mandatory for every employee that received the original email from me dated December 29 2009, to receive the jump pack training and, once trained, to use the jump packs when necessary. Your training, as you were informed by email, is scheduled for Thursday, January 21st at 0600. You are ordered to be there. Furthermore, upon receiving the training, you are ordered to perform the public service of jump starting a citizen’s dead battery with said jump pack.
As addressed in the original email, jump starting a vehicle is a public service and considered a motorist assist and part of your duties as a Deputy with the Otsego County Sheriffs Office.

Defs.’ Mot. Ex. V.

Seeing that the Department was not going to waiver on the issue, Cavanaugh filed a grievance with the Police Officers’ Labor Council on January 21, 2010.1 In the grievance, Cavanaugh complained that he was “ordered to attend training on 1-21-2010 @ 0600hrs. for the use of portable car battery charging packs. After completion of such training, Deputy Cavanaugh was ‘ordered to perform the public service of jump starting a citizens dead battery with said jump pack’ when situations arise.” Defs.’ Mot. Ex. T, at 1. Cavanaugh then indicated how the issue should be settled: “Replacement and/or reimbursement of personal items that are damaged, lost, or ruined by carrying out the above order[,]” and “For the administration of the Otsego County Sheriffs Office to rescind its order of ‘jump starting’ vehicles.” Id.

Four days later, Cavanaugh’s grievance was denied because “[t]he jump starting of vehicles is a duty that has historically been conducted by P.O.L.C. unit members. It is the administrations stance that it is a public service that the P.O.L.C. unit mem[843]*843bers have, and will continue to perform.” Id. at 2. In March 2010, the Otsego County-Board of Commissioners issued a letter explaining why Cavanaugh’s grievance was denied:

The committee reviewed the current bargaining agreement between the County, Sheriff, and the POLC Unit and found no language that prohibited the act of jump starting a citizen’s vehicle.... The reimbursement and/or replacement of personal items that are damaged or ruined by jump starting a vehicle would be standard practice. The desired settlement of rescinding its order of “jump starting” vehicles for all situations is denied. The County would note, the usual caveat that there are particular instances where extenuating circumstances exist and the officer reasonably feels there is an issue of safety in performing a duty which may arise.

Defs.’ Mot. Ex. W, at 1.

B

While the jump-pack incident was winding down, another issue arose in March 2010. Cavanaugh alleges in his complaint that prior to March 5, 2010, “Nowicki announced a change in schedule for the deputies.” Pl.’s Compl. ¶25, ECF No. 1. You see, prior to the announcement, deputies were assigned one of two twelve-hour shifts — 6:00 a.m. to 6:00 p.m. or 6:00 p.m. to 6:00 a.m. Allegedly, “Nowicki had decided, with McBride’s approval, to change to a 6:00 AM to 6:00 PM shift, followed by a 12:00 Noon to 12:00 Midnight shift.” Id. ¶ 27.

On March 5, 2010, Cavanaugh — in his capacity as union president-met with Now-icki to discuss the scheduling change. According to Cavanaugh, he told Nowicki “that he believed the schedule change was being implemented without properly following the procedure outlined in the Collective Bargaining Agreement.” Id. ¶ 29. Cavanaugh expressed his intention to file an “unfair labor practice claim with the MERC” if Nowicki went forward with the change. Id. ¶ 30. Cavanaugh claims that he and Nowicki “decided that the union and the administration would propose a schedule and have the proposed schedules ready to review over the weekend.” Id. ¶ 32.

But that is not what happened. On March 9, 2010, Cavanaugh was in the squad room completing a vacation request form at the end of his shift. Also in the squad room was Jail Cook Tim Hohl. After some polite conversation with Hohl, Cava-naugh opened the schedule book to complete his vacation request. That is when he noticed “that the administration had gone ahead and implemented the [new] schedule, contrary to the decision he and Nowicki had reached.” Id. ¶ 36. Cava-naugh did not approve. Still armed and in uniform, he said, “I could kill the boss.” Id. ¶ 37.

Hohl authored a statement on March 9, 2010, in which he indicated that Cava-naugh’s comment made him “really uncomfortable; the manner in which he was acting and talking seemed very odd. I became very concerned for my superiors and wrote down exactly what was said.” Defs.’ Mot. Ex. AA. Hohl was particularly concerned because Cavanaugh “was armed and in uniform.” Id. Hohl made clear that he “definitely did not take [Cavanaugh’s] statement as a joke or just blowing off steam.” Id.

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Bluebook (online)
33 F. Supp. 3d 840, 2014 WL 82616, 198 L.R.R.M. (BNA) 2178, 2014 U.S. Dist. LEXIS 2359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cavanaugh-v-mcbride-mied-2014.