Mich. police officer can pursue retaliation claim

Friday, August 14, 2009

A federal judge has refused to dismiss the retaliation claim of a police officer in Oscoda, Mich., who said he was fired for protesting the alleged targeting and treatment of his daughter by other officers.

In October 2005, Officer Kevin Kubik stopped fellow Officer Jeffrey Dzierbicki’s high school-aged daughter, Chelsea, while she was driving home from a Halloween party. Kubik arrested her for driving under the influence and then allegedly made inappropriate sexual remarks to another officer about her. The incident was one of numerous times in which officers pulled Chelsea over while she was driving, according to court documents. Chelsea later filed her own federal lawsuit over the repeated stops.

In October 2006, Dzierbicki planned to test whether his daughter was being profiled by driving her car in the evening. Kubik pulled the car over and encountered an angry Dzierbicki. Dzierbicki complained about the traffic stop vehemently to superiors, but he was later punished for his conduct during the stop.

In December 2006, Dzierbicki received a warning for failing to meet the department’s required number of 20 traffic stops that month. Dzierbicki had made 19 traffic stops.

Dzierbicki sued the town, town superintendent, police chief and other officers in July 2007. He alleged numerous causes of action, including a First Amendment retaliation claim.

The defendants terminated Dzierbicki’s employment in August 2008 purportedly for failing to respond in a timely fashion to a police call on July 28, 2008, when he was on patrol. Dzierbicki contended that his police radio did not work properly and that for much of the time in question he was on patrol in an area that often was a “black hole” for radio reception. The defendants said Dzierbicki lied about his whereabouts and was not performing his police duties.

In February 2009, Dzierbicki filed an amended complaint in which he contended that the defendants further retaliated against him by firing him. On Aug. 7, U.S. District Judge Thomas L. Ludington refused to dismiss the retaliation claim in Dzierbicki v. Township of Oscoda.

The defendants contended that the claim should be dismissed because Dzierbicki failed to file an administrative grievance through his union. Dzierbicki decided against a union claim because his union representative was one of the officers he was suing. “Defendants cite no authority for the proposition that a plaintiff must exhaust internal grievance procedures before bringing claims for constitutional violations in a civil suit,” Ludington wrote.

The defendants also alleged that the retaliation claim should be tossed out because Dzierbicki did not show that any of the underlying speech in question addressed a matter of public concern or importance — a necessary requirement in a public employee’s First Amendment claim. Ludington rejected that argument, noting that sexual harassment and selective enforcement by police officers presented questions of public importance.

Finally, the defendants asserted that Dzierbicki failed to show any type of close connection between his speech and his firing. They pointed out that Dzierbicki first filed suit in July 2007 but was not fired until August 2008. They also argued that Dzierbicki’s delay in responding to the police dispatch call in July 2008 provided an independent, legitimate reason for discharge.

However, Ludington noted that two of the investigating officers into the July 2008 dispatch-call incident were defendants in either Dzierbicki’s or his daughter’s lawsuits. He also wrote that “the investigating officers did not attempt to verify whether there was a ‘black hole’ for receiving messages in that location.” The judge noted that another officer testified that historically there had been problems in receiving messages on police radios.

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