Dibrito v. City of St. Joseph

171 F. Supp. 3d 644, 2016 WL 1084266, 2016 U.S. Dist. LEXIS 35711
CourtDistrict Court, W.D. Michigan
DecidedMarch 21, 2016
DocketCase No. 1:14-CV-814
StatusPublished
Cited by1 cases

This text of 171 F. Supp. 3d 644 (Dibrito v. City of St. Joseph) is published on Counsel Stack Legal Research, covering District Court, W.D. Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dibrito v. City of St. Joseph, 171 F. Supp. 3d 644, 2016 WL 1084266, 2016 U.S. Dist. LEXIS 35711 (W.D. Mich. 2016).

Opinion

OPINION

GORDON J. QUIST, UNITED STATES DISTRICT JUDGE

Plaintiff, Albert DiBrito, was the Deputy Director of the Public Safety Department (PSD) of the City of St. Joseph (the City) until he was terminated on May 6, 2014. After his termination, DiBrito sued the City, its manager, Richard Lewis, and the director of the PSD, Mark Clapp. DiBrito alleges that he was terminated because he reported that Clapp had engaged in misconduct. DiBrito asserts that his termination violated his Constitutional rights under the First Amendment and Due Process Clause, as well as Michigan statutory and common law. Defendants have moved for summary judgment on all counts. For the following reasons, the Court dismisses the federal claims (Counts I and II), and declines to exercise jurisdiction over the state-law claims.

Background

DiBrito retired from a long career with the FBI in 2012. (Dkt. #1 at Page ID#3, ¶12.) Shortly thereafter, DiBrito began work as the deputy director of the City’s newly formed PSD, which unified the police and fire departments. (Id. at ¶¶ 15, 16.) DiBrito reported to then — City Manager, Frank Walsh, and Clapp, the PSD’s director. (Id. at ¶¶ 16-18.) From the beginning of his tenure with the PSD, DiBrito kept notes on certain occurrences, including when Clapp took actions of which DiBrito disapproved. (Dkt. #31-2 at Page ID#164-70.)

On September 17, 2013, an elderly woman called the police department to report that she had a shotgun that she no longer wanted. (Dkt. #31-4 at Page ID#253.) The gun owner gave Officer Tom Vaught permission to destroy or auction the shotgun, and Vaught turned the shotgun over to Clapp. (Id.) Clapp decided that he wanted the shotgun for himself, and discussed with several individuals whether he should purchase it. (Dkt. #31-5 at Page ID#275.) DiBrito advised Clapp not to purchase it, but Clapp ignored that advice. (Dkt. #31-3 at Page ID#192.) Instead, Clapp took the shotgun home with him that night. (Dkt. #31-5 at Page ID#275.) The next day, Clapp met the woman who had turned in the shotgun, and they agreed that Clapp would purchase the shotgun for $50. (Id.; dkt. #31-4 at Page ID#253.)

Thereafter, DiBrito decided to “check[ ]... some legal issues” related to Clapp’s purchase of the shotgun. (Dkt. #31-3 at Page ID#193.) DiBrito was un[648]*648able to find a city policy that prohibited Clapp’s purchase. (Id.) On October 7, 2013, DiBrito called Assistant U.S. Attorney Donald Daniels, who told DiBrito that Clapp did not violate federal law. (Id.) At that time, DiBrito chose not to report Clapp’s actions to Lewis, who had taken over as City Manager a couple months prior to Clapp’s purchase, because Lewis was new to his position. (Id.)

Tensions between DiBrito and Clapp continued after the September 2013 disagreement. On January 23, 2014, DiBrito had a disagreement with Jim Crowe, who was his command equal on the fire department side of the PSD. (Dkt.#31-3 at Page ID#193.) Crowe believed that DiBrito had a role in Crowe having been rejected from a police chief training program. (Id.) On January 24, 2014, DiBrito had a discussion with Clapp about the Crowe issue. (Id. at Page ID#194.) Clapp said that he would fire DiBrito if Clapp learned that DiBrito had a role in Crowe’s rejection. (Id.)

That same day, Clapp met with Officer Vaught about a decision not to promote Vaught. (Dkt. #31-5 at Page ID#278.) Vaught told Clapp that he thought the process had been unfair, and Clapp responded that the process for filling DiBri-to’s position had been more unfair. (Id.) Clapp explained that Walsh (the former city manager) had hired DiBrito even though other candidates had superior qualifications. (Id.) Clapp went on to say that DiBrito had investigated Walsh, and that DiBrito had agreed to drop the investigation in exchange for Walsh promising DiBrito a job and money for a project DiBri-to supported. (Id.; dkt. #37-7 at Page ID#684, 693.)

Vaught told DiBrito about Clapp’s comments. (Dkt. #37-7 at Page ID##684, 695.) On January 26, 2014 — the first business day after Clapp threatened to fire DiBrito and DiBrito learned about Clapp’s comments to Vaught — DiBrito filed a formal complaint with Lewis regarding Clapp’s shotgun purchase, which had occurred four months earlier. (Dkt. #37-4 at Page ID#633). DiBrito described the incident, and stated that the U.S. Attorney’s office had told DiBrito that there was no violation of federal law, and that DiBrito could not locate any policy prohibiting Clapp’s actions. (Id.) Nonetheless, DiBrito recommended that Lewis contact the Michigan State Police to investigate. (Id.) DiBrito did not mention Clapp’s comments to Vaught in that complaint, but told Lewis about the comments the following day. (Dkt. #31-3 at Page ID##197-99.)

Following DiBrito’s complaint, Lewis undertook an investigation of the shotgun incident and placed Clapp on administrative leave. (Dkt.#31-10 at Page ID#342-43.) During that investigation, Lewis and John Hodgson, the City’s Community Development Director, interviewed a number of City employees, and Hodgson memorialized those interviews in a memorandum. (See dkt. #31-8 at Page ID#317-31.) Lewis sent a copy of DiBrito’s complaint to the Michigan State Police, who responded with a letter stating that it would not conduct a criminal investigation because “the elements to prove that a crime was committed and prove it beyond a reasonable doubt to a jury would be extremely unlikely.” (Id. at Page ID#361; dkt. #37-13 at Page ID#738.) Lewis also determined that no city policy prohibited Clapp’s conduct, and that such activity had long been accepted within the police department. (Dkt. #37-5 at Page ID#637-38.) Lewis concluded that the City should have a policy against such purchases, however, and directed DiBrito to take the lead in drafting such a policy. (Id.; dkt.#31-10 at Page ID#345.)

The investigation left Lewis “troubled by the background of the complaint.” (Dkt. #37-5 at Page ID#640; dkt. #31-10 at [649]*649Page ID#351.) Lewis felt that DiBrito should have come to him earlier if he was concerned about a potential legal or ethical issue, and that DiBrito’s excuses for not doing so were incredible and inadequate. (Id.) Lewis further believed that DiBrito’s “own words and statements” indicated that he knew that Clapp had not violated the law. (Id.)

Lewis had learned during the course of his investigation that there were a number of management issues within the PSD, and determined that a third-party investigation was necessary. (Dkt. #31-10 at Page ID#346-48.) The City hired Theresa Smith Lloyd from Plunkett Cooney to conduct the investigation. (Id. at Page ID#350.) Lloyd interviewed a number of City employees and submitted a report on April 28, 2014. (Dkt. #31-12 at Page ID#409.) The report concluded that Clapp’s statements to Vaught regarding how DiBrito got his job were “inappropriate statements for a commanding officer to make regarding a second in charge,” and that the “issue should be dealt with appropriately within the department.” (Dkt. #31-12 at Page ID#449.) It went on to state that many employees had raised issues regarding DiBrito’s “honesty, inappropriate statements to subordinates regarding a commanding officer, favoritism, and retaliation,” and that such issues “must be addressed with DiBrito.” (Id.)

On May 6, 2014, Lewis terminated DiBrito and suspended Clapp for five days without pay. (Dkt.

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Cite This Page — Counsel Stack

Bluebook (online)
171 F. Supp. 3d 644, 2016 WL 1084266, 2016 U.S. Dist. LEXIS 35711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dibrito-v-city-of-st-joseph-miwd-2016.