John Clemente v. Frank Vaslo

*The Honorable Karen K. Caldwell, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0135p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
J OHN CLEMENTE ; BRIAN DAILEY ; J OHN
WERKSMA ; DENNIS STOL ; KAREN STOL ;
CHARLES TAYLOR II; GLENN RAY ; BRIAN
DE PALMA ,
Plaintiffs-Appellants,
v.
FRANK VASLO ,
Defendant,
STEVE DUCHANE ; ROBERT BARTOK ; CITY OF
LINCOLN PARK ,
Defendants-Appellees.
X---->
,-----------
N
No. 10-2506
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:09-cv-13854—Robert H. Cleland, District Judge.
Decided and Filed: May 15, 2012
Before: MARTIN and McKEAGUE, Circuit Judges; CALDWELL, District Judge.*
_________________
COUNSEL
ON BRIEF: Joel B. Sklar, Detroit, Michigan, Karen Mendelson, Ann Arbor, Michigan,
for Appellants. Rosalind Rochkind, Roger A. Smith, GARAN LUCOW MILLER, P.C.,
Detroit, Michigan, Michael S. Borgen, PLUNKETT COONEY, Kalamazoo, Michigan,
for Appellees.
1

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_________________
OPINION
_________________
McKEAGUE, Circuit Judge. Plaintiffs, with the exception of Karen Stol, are
former employees of the City of Lincoln Park who were terminated after the City
determined that they had tampered with their water meters. Plaintiffs claim that their
Fourth Amendment rights were violated when city officials came to their homes to
inspect their water meters and that they were terminated in retaliation for asserting those
rights. Additionally, one Plaintiff claims that he was discharged in violation of his First
Amendment right to association. The district court dismissed the Fourth Amendment
claims against individual officials on qualified immunity grounds and granted summary
judgment in favor of Defendants on the retaliation, right to association, and municipal
liability claims. We AFFIRM.
I. BACKGROUND
Defendant Steve Duchane is the manager of the City of Lincoln Park (“City”).
He met several times with outside auditors regarding the City’s loss of water revenue.
One of the auditors suggested water theft as a possible explanation, and Duchane
decided to investigate. Mazhgon Rajaee, a City intern, was given the task of preparing
a water usage study surveying active and retired public employees. City employees were
chosen to be the test group because the City already possessed information regarding the
number of household members in each home, facilitating analysis. Rajaee used two
years of billing information to complete her study. The study showed that the average
water usage over that two-year period was 162 units for active employees and 146 units
for retirees. The study also showed that the nine lowest consumers were all employees
of the Department of Public Services (“DPS”). This group of nine consisted of Ronald

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1The nine lowest consumers and their consumption rates over the test period were the following:
Dennis Stol (29 units), Ronald DePalma (31 units), John Clemente (42 units), John Werksma (44 units),
Brian Dailey (46 units), Glenn Ray (51 units), Michael Shaffer (69 units), Charles Taylor (70 units), and
Brian DePalma (71 units).
2Lincoln Park’s City Ordinance No. 1042.08, governing “Right of Entry and Repair of
Connections,” provides that “[t]he duly constituted authorities of the City may, at all reasonable hours,
enter, with the occupant’s approval, upon any premises where water service is established for the purpose
of inspecting and making an examination of the water meter and outward therefrom to the curb stop. Such
City authorities may require water connections to meters to be repaired, removed, replaced or changed
where the same are defective or not in compliance with this chapter or other applicable ordinances of the
City as such authorities deem necessary. If such repair, replacement, or alteration is not made as required,
the City may make such repair, replacement or alteration and charge the actual cost thereof to the parties.
Any persons whose premises are supplied with water shall be deemed as having assented to the provisions
of this chapter.”
City Ordinance No. 1042.12 states that “[n]o person shall damage, break, remove, modify, alter
or tamper with any water meter for the purpose of providing water to any premises without going through
the meter.
DePalma, Michael Shaffer, and all of the Plaintiffs except Karen Stol, who was not a
DPS employee.1
Duchane discussed these results with City Attorney Edward Zelenak and
scheduled a meeting with the Wayne County Prosecutor’s Office. Assistant Prosecuting
Attorney Richard Hathaway suggested that the City investigate whether the water meters
had been physically tampered with. Deputy Brian White, a Detective with the Wayne
County Sheriff’s Department, was assigned to assist the City with its investigation.
Robert Bartok, the Director of DPS, and White met with Duchane to discuss the
investigation. With guidance from the prosecutor’s office, they developed a tiered plan
to gain access to the water meters. First, Bartok and White would ask the resident if they
could inspect the meter. If access was refused, they would ask the resident if they could
inspect the meter pursuant to a city ordinance that allows city officials to enter, with the
occupant’s approval, any premises with water service for the purpose of inspecting the
meter.2 If refused access again, Mr. Bartok would give a direct order as the resident’s
supervisor to see the meter. If the resident continued to refuse access to the meter, White
and Bartok would leave the residence and seek a warrant.
Bartok and White visited DPS employees suspected of water theft on June 30,
2009. They first visited Ronald DePalma, a DPS Supervisor. Bartok and White
requested to inspect the water meter. DePalma consented and led Bartok and White to

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the meter. The meter head was leaning to one side and a screw was out of place.
DePalma admitted to having turned the meter on and off. He ultimately resigned from
his position with the City and is not a party to this case.
Next, Bartok and White went to the home of Plaintiffs Dennis and Karen Stol.
Mrs. Stol testified that Detective White said he and Bartok “[had] to come in and look
at the meter,” that she said “no” a couple of times, and that she said she’d rather wait
until her husband arrived home. She stated that Detective White was “very persistent
and adamant about coming in.” Mrs. Stol added that she let White and Bartok in only
after she asked whether it would affect her husband’s job and Bartok answered yes.
Bartok, however, denied being asked that question, and both Bartok and White testified
that, upon request, Mrs. Stol allowed them inside and led them to the meter. The Stols’
meter head was not attached to the rest of the meter and a security screw was missing.
Plaintiff John Clemente’s home was next. Bartok and White requested to see his
water meter, but Clemente refused access into his home without a warrant. Bartok cited
the city ordinance, to no avail. Bartok then gave Clemente a direct order to allow him
to inspect the meter, but Clemente continued to refuse access. White informed Clemente
that they could get a search warrant but would prefer it if Clemente just gave his
authorization. White and Bartok testified that Clemente became animated, stating that
“he knew what was going on” and was “going to call everyone to let them know what
was going on.” Bartok and White then left. Clemente testified that White acknowledged
Clemente was not obligated to let them into his house without a warrant.
Bartok and White next visited Plaintiff Brian Dailey. They told Dailey of their
intention to investigate illegal water usage and requested to see Dailey’s water meter.
Dailey refused to let them into his house without a warrant. Bartok cited the city
ordinance and gave Dailey a direct order as his supervisor, but Dailey still refused entry,
at which point Bartok and White left. Dailey testified that Bartok “got right in [his]
face” and yelled when he gave the direct order.

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Next, Bartok and White visited Plaintiff Charles Taylor. Nobody answered the
door, so Bartok and White left. Bartok noted that Taylor had a pool and nice
landscaping.
Bartok and White then visited Plaintiff Glenn Ray. They explained they were
investigating water meter tampering and requested to see Ray’s water meter. Bartok and
White testified that Ray hesitated or seemed to think about it and then allowed Bartok
and White inside to inspect the meter. Bartok stated he did not give Ray a direct order,
but Ray testified that Bartok did so and additionally informed Ray that he had authority
to inspect Ray’s meter at any time. While guiding Bartok and White to the meter, Ray
became agitated, saying, “I f–ed up,” “you got me,” “I’m sorry,” and “I can’t get fired,”
and began pacing, shaking, and sweating. Ray’s meter was disconnected and the head
was hanging from a wire.
Lastly, Bartok and White visited Plaintiff John Werksma. White informed
Werksma that they were investigating water meter tampering and requested to look at
Werksma’s meter, upon which Werksma immediately complied. Werksma testified that
he voluntarily let White and Bartok into his home. He stated he was anxious because he
believed the city was trying to eliminate his position but that he did not resist White and
Bartok’s entry to his home. Upon viewing the meter, White and Bartok observed that
the head was removed from the body. Werksma mentioned that plumbers must have
knocked the meter head off the body.
After these inspections, Bartok and White submitted written reports to Duchane
and the Wayne County Prosecutor’s Office.
On July 14, 2009, Lieutenant Martin of the Lincoln Park Police, along with
Bartok and Ed Collins, an independent plumbing contractor retained by the City,
executed warrants to search for and seize the water meters located at the residences of
Clemente, Dailey, Taylor, Brian DePalma, and Michael Shaffer. Bartok later submitted
to Duchane a written report briefly reviewing each visit. He reported that Dailey’s and
Clemente’s meters exhibited visible signs of tampering, that Taylor’s and DePalma’s
meters did not show any immediate signs of malfunction, that Shaffer’s meter showed

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no tamper marks, and that both he and Collins concluded that Schaffer’s meter had not
been tampered with.
The seized meters were taken to an evidence room at the police department. The
City retained Martin Ladd, Director of Public Services for the City of Hamtramck, to
inspect them further. Ladd was not given the historical water usage of the Plaintiffs and
instructed to simply inspect the physical condition of the meters for anything out of the
ordinary. He testified that he found indications the meters were damaged or otherwise
not normal, such as missing security pins, abnormal positioning of the meter heads, and
scratches on the meter even though the pin was not damaged. He stated that such defects
were not necessarily the result of intentional tampering and could have been caused by
faulty installation. He could not definitively conclude, based on his inspection, that any
of the Plaintiffs had tampered with their meter but stated that he would not rule it out as
a possibility.
On July 24, 2009, Plaintiffs (except Karen Stol) were notified that the
investigation had revealed evidence supporting charges that they improperly received
water service and tampered with their meters. Plaintiffs were given an opportunity to
respond to the charges. Disciplinary hearings were held, and Plaintiffs were ultimately
terminated.
Following Plaintiffs’ terminations, arbitration proceedings were held in
accordance with their rights under their collective bargaining agreement. Arbitration
award opinions issued for Stol, Clemente, Dailey, Taylor, and Brian DePalma. All five
terminations were upheld by the arbitrator.
Plaintiffs then filed suit against Frank Vaslo (mayor of Lincoln Park), Duchane,
Bartok, and the City for violations of their constitutional rights pursuant to 42 U.S.C.
§ 1983. The Stols, Ray, and Werksma alleged violations of their Fourth Amendment
right to be free from unreasonable searches and seizures, claiming that their consent was
coerced. Dailey, Clemente, and Taylor claimed they were terminated in retaliation for
asserting their Fourth Amendment rights. Brian DePalma claimed that he was
discharged simply because his brother, Ronald DePalma, admitted to tampering with his

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3Plaintiffs have not appealed this ruling; thus, Valso is not a party to this appeal.
water meter, which violated his First Amendment associational rights. Plaintiffs also
alleged state law defamation claims.
The district court found that Duchane and Bartok were protected by qualified
immunity on the Fourth Amendment claim and that they were entitled to summary
judgment on Plaintiffs’ retaliation and right to association claims. The court granted
summary judgment in favor of Defendant Vaslo, finding Plaintiffs failed to allege any
specific facts as to his involvement in the events and that he could not be held liable on
a theory of respondeat superior.3 The court also granted summary judgment in favor of
the City, finding that Plaintiffs failed to establish a municipal policy or custom resulting
in a deprivation of federal rights. Lastly, the district court dismissed without prejudice
Plaintiffs’ state law claims. Clemente v. Vaslo, No. 09-13854, 2010 WL 4636250 (E.D.
Mich. Nov. 5, 2010).
II. ANALYSIS
A. Standard of Review
This Court reviews a district court’s grant of summary judgment de novo. Binay v.
Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010). Summary judgment is appropriate when the
materials in the record “show[] that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “In deciding a
motion for summary judgment, the court must view the factual evidence and draw all
reasonable inferences in favor of the nonmoving party.” Salling v. Budget Rent-A-Car Sys.,
Inc., 672 F.3d 442, 444 (6th Cir. 2012) (internal quotation marks omitted).
B. Warrantless Search Claims of Stol, Ray, and Werksma
The Stols, Ray, and Werksma claim that their consent allowing Bartok and White into
their homes to inspect their water meters was involuntary, resulting in an illegal search
prohibited by the Fourth Amendment. Defendants claim their actions are protected by qualified
immunity.

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“The doctrine of qualified immunity protects government officials ‘from liability for
civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The
Supreme Court has laid out a two-step inquiry to determine if qualified immunity protects an
official’s actions: (1) whether, “[t]aken in the light most favorable to the party asserting the
injury, . . . the facts alleged show the officer’s conduct violated a constitutional right[],” and
(2) whether that right was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled on other grounds by Pearson, 555 U.S. at 236. Courts may “exercise their sound
discretion in deciding which of the two prongs of the qualified immunity analysis should be
addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S.
at 236.
1. Fourth Amendment Right
The right at issue is the Fourth Amendment right to be free of “unreasonable searches
and seizures.” U.S. Const. Amend. IV. “[A] search conducted without a warrant issued upon
probable cause is ‘per se unreasonable . . . subject only to a few specifically established and
well-delineated exceptions.’” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (omission
in original) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). One of these specifically
established exceptions is a search pursuant to consent, which must be voluntarily given. Id.
“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or
coercion, express or implied, is a question of fact to be determined from the totality of all the
circumstances.” Id. at 227. This includes considering the characteristics of the individual
giving consent, such as “age, intelligence, and education”; whether the questioner engaged in
“coercive or punishing conduct”; and the presence of “more subtle forms of coercion that might
flaw an individual’s judgment.” United States v. Beauchamp, 659 F.3d 560, 572 (6th Cir.
2011) (alteration, citations, and internal quotation marks omitted). “The government bears the
burden of proving, through clear and positive testimony[,] that the consent to search was given
voluntarily.” Id. at 571 (internal quotation marks omitted).

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Plaintiff Werksma has failed to state a Fourth Amendment claim. Werksma himself
stated that he voluntarily let Bartok and White into his home. Though Werksma also testified
that he felt anxious because he believed the city was eliminating jobs, he did not act under any
threats or other coercive tactics. He has shown nothing more than that he acted voluntarily in
a manner least likely to endanger his job. As the Supreme Court has noted,“the question is not
whether the [individual] acted in her ultimate self-interest, but whether she acted voluntarily.”
United States v. Mendenhall, 446 U.S. 544, 559 (1980).
The Stols and Ray, however, claim to have consented only after Bartok threatened their
employment. Karen Stol testified that she refused Bartok and White entry a couple times and
let them in only upon being informed that the matter would affect her husband’s job. Ray
testified that he let Bartok and White in because he was given a direct order. The Stols and Ray
argue that such threats to their jobs create an issue of fact as to whether consent was voluntary.
We do not express an opinion on whether the alleged action constitutes coercion within the
meaning of the Fourth Amendment and decide the issue on grounds that the law was not clearly
established.
2. Clearly Established Law
For a right to be clearly established, “[t]he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987). “It is important to emphasize that this
inquiry ‘must be undertaken in light of the specific context of the case, not as a broad general
proposition.’” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (quoting Saucier, 533 U.S. at
201). “The general proposition, for example, that an unreasonable search or seizure violates
the Fourth Amendment is of little help in determining whether the violative nature of particular
conduct is clearly established.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2084 (2011) (citing
Saucier, 533 U.S. at 201-02). Thus, “[t]he relevant, dispositive inquiry . . . is whether it would
be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”
Saucier, 533 U.S. at 202 (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)).
“We look first to the decisions of the Supreme Court, and then to the case law of this
circuit in determining whether the right claimed was clearly established when the action

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4That section provided: “If any councilman or other officer or employee of the city shall, after
lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative
committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared
shall refuse to testify or to answer any question regarding the property, government or affairs of the city
or of any county included within its territorial limits, or regarding the nomination, election, appointment
or official conduct of any officer or employee of the city or of any such county, on the ground that his
answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of
any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term
or tenure of office or employment shall terminate and such office or employment shall be vacant, and he
shall not be eligible to election or appointment to any office or employment under the city or any agency.”
Uniformed Sanitation Men, 392 U.S. at 282 n.3.
complained of occurred.” Gragg v. Ky. Cabinet for Workforce Dev., 289 F.3d 958, 964 (6th
Cir. 2002) (citing Black v. Parke, 4 F.3d 442, 445 (6th Cir. 1993)). “[T]he case law must
‘dictate, that is, truly compel (not just suggest or allow or raise a question about), the
conclusion for every like-situated, reasonable government agent that what defendant is doing
violates federal law in the circumstances.’” Id. (quoting Saylor v. Bd. of Educ. of Harlan Cnty.,
118 F.3d 507, 515 (6th Cir. 1997)). Plaintiffs bear the burden of showing the claimed right was
clearly established. Everson v. Leis, 556 F.3d 484, 494 (6th Cir. 2009).
Plaintiffs cite to Uniformed Sanitation Men Ass’n, Inc., v. Commissioner of Sanitation
of the City of New York, 392 U.S. 280 (1968) as the clearly established law that controls this
case. There, the New York Commissioner of Investigation looked into allegations that
employees of the Department of Sanitation were charging improper fees to use certain city
facilities and pocketing the proceeds. The petitioners were 15 sanitation employees who were
summoned before the Commissioner, and each was advised that pursuant to § 1123 of the New
York City Charter,4 “if he refused to testify with respect to his official conduct or that of any
other city employee on the grounds of self-incrimination, his employment and eligibility for
other city employment would terminate.” 392 U.S. at 282. Twelve of the petitioners
nonetheless asserted their constitutional privilege against self-incrimination and refused to
testify, upon which they were dismissed “on the explicit ground . . . that they had refused to
testify.” Id. Three of the petitioners subjected themselves to questioning and denied the
charges. They were suspended and subsequently summoned before a grand jury and asked to
sign waivers of immunity, which they refused. After an administrative hearing, they were
dismissed “on the sole ground that they had violated § 1123 of the City Charter by refusing to
sign waivers of immunity.” Id. at 282-83. The United States Supreme Court held that New

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York could not force the petitioners to choose between surrendering their constitutional rights
or their jobs and concluded they had been wrongfully dismissed. Id. at 284-85.
Gardner v. Broderick, 392 U.S. 273 (1968), the companion case to Uniformed
Sanitation Men, involved similar facts and came to a similar conclusion. There, a police officer
was summoned to testify before a grand jury and was asked to sign a waiver of immunity after
being told he would be fired if he did not sign one. He refused, was given an administrative
hearing, and was discharged solely for this refusal. Gardner, 392 U.S. at 274-75. Though the
Court acknowledged that one’s privilege against self-incrimination can be knowingly and
voluntarily waived, it concluded that “the mandate of the great privilege against self-
incrimination does not tolerate the attempt, regardless of its ultimate effectiveness, to coerce
a waiver of the immunity it confers on penalty of the loss of employment.” Id. at 279.
One more case bears mention. Garrity v. New Jersey, 385 U.S. 493 (1967), a
counterpart to the aforementioned Supreme Court cases, involved police officers under
investigation who were informed they could claim their privilege against self-incrimination but
that refusal to answer a question would subject them to termination. The appellant officers did
not claim the privilege and answered the questions, which answers then led to their criminal
prosecutions and convictions. The Garrity Court held that the officers’ statements were
products of coercion obtained in violation of due process:
The choice given petitioners was either to forfeit their jobs or to incriminate
themselves. The option to lose their means of livelihood or to pay the penalty
of self-incrimination is the antithesis of free choice to speak out or remain
silent. That practice . . . is likely to exert such pressure on an individual as to
disable him from making a free and rational choice. We think the statements
were infected by the coercion inherent in this scheme of questioning and cannot
be sustained as voluntary under our prior decisions.
385 U.S. at 497-98 (citation and internal quotation marks omitted).
Though Uniformed Sanitation Men and its ilk involved the Fifth Amendment rather than
the Fourth, the cases may stand for the broader proposition that public employees cannot be
given a stark choice between asserting a constitutional right and keeping their jobs. See
Uniformed Sanitation Men, 392 U.S. at 284 (finding that the offensive aspect of the

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5Though Garrity drew from the Court’s cases on the voluntariness of confessions under the Due
Process Clause of the Fourteenth Amendment, such analysis is equally applicable to the voluntariness of
consent under the Fourth Amendment. See Schneckloth v. Bustamonte, 412 U.S. 218, 223-29 (1973)
(drawing from Fourteenth Amendment confession law to determine the meaning of voluntariness under
the consent exception to the warrant and probable cause requirements of the Fourth Amendment and
concluding that “there is no reason for us to depart in the area of consent searches, from the traditional
definition of ‘voluntariness’”).
proceedings against petitioners was that they “present[ed] them with a choice between
surrendering their constitutional rights or their jobs”). As Garrity explained, the presentment
of such a choice is coercive.5 385 U.S. at 497-98. The Sixth Circuit cases on this issue fall
well within the clearly established law, upholding employer actions where the employees were
not required to give up constitutional protections in order to keep their employment. See Wood
v. Summit Cnty. Fiscal Office, 377 F. App’x 512, 515 (6th Cir. 2010) (finding no Fifth
Amendment violation where plaintiff was terminated after he declined to attend a disciplinary
hearing even though he had been informed he would not be required to waive his Fifth
Amendment privilege); Lingler v. Fechko, 312 F.3d 237, 239-40 (6th Cir. 2002) (finding no
Fifth Amendment violation where police chief exacted statements from officers because there
was no evidence police officers had been required to waive privilege against self-
incrimination).
Plaintiffs contend that Duchane and Bartok did exactly what was clearly disallowed by
Uniformed Sanitation Men and Gardner: forced Plaintiffs to surrender either their constitutional
rights or their jobs. However, what actually transpired—taking Plaintiffs’ version of the facts
as we must—is a step removed. In order to gain access to the water meters, Bartok and White
acted pursuant to a sliding scale: (1) they asked permission to inspect the meter, (2) they
informed the occupant that a city ordinance gave the city the right to inspect the meter, and
(3) Bartok gave a direct order as Plaintiffs’ supervisor to show them the meter. Where the
employee continued to refuse access, as Clemente and Dailey did, Bartok and White respected
his Fourth Amendment rights and left. What is clearly established is only that public employers
may not coerce their employees to abdicate their constitutional rights on pain of dismissal, and
that is not what happened here.

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Plaintiffs cite to an Eighth Circuit case, Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994),
which neither is controlling nor would clearly establish the law even were it from this Circuit
because it falls squarely within Uniformed Sanitation Men. There, a police officer who had a
possessory interest in a dog refused to give the dog to the police department until threatened
that he would be relieved of duty if he did not do so. The Eighth Circuit found that this was a
seizure within the meaning of the Fourth Amendment. Though the court remanded for a
determination on whether the warrantless seizure was justified by an exception, it noted, citing
to Uniformed Sanitation Men, that “the State may not coerce [public employees] into
relinquishing a constitutional guarantee under threat of losing their employment.” Lesher,
12 F.3d at 150.
Defendants’ actual conduct highlights the blurriness of the Fourth Amendment’s
contours in the context of an employer-employee relationship. Bartok and White acted on a
gradient, applying more pressure at each step to obtain consent (simply asking, then citing to
a city ordinance, then giving a direct order as supervisor), but never forced Plaintiffs to choose
between letting them in or losing their jobs. Though we do not decide the issue, we note that
a supervisor’s direct order may be coercive in some situations, as it may be reasonable for an
employee to believe that disobeying it will result in termination. The question, however, is not
whether such conduct could possibly constitute a Fourth Amendment violation but whether,
according to settled Supreme Court and Sixth Circuit precedent at the time, such conduct was
so clearly violative of the Fourth Amendment that it is beyond debate. See al-Kidd, 131 S.Ct.
at 2083 (“We do not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.”). Short of threatening termination,
what public employers could do to obtain an employee’s consent to conduct an inspection was
not clearly established. Duchane and Bartok are thus entitled to qualified immunity.
A Ninth Circuit decision came to the same conclusion in a somewhat analogous factual
scenario. Delia v. City of Rialto, 621 F.3d 1069, 1071 (9th Cir. 2010), rev’d on other grounds,
Filarsky v. Delia, — U.S. —, 132 S. Ct. 1657 (2012), involved a firefighter, Delia, who
obtained several off-duty work orders for medical reasons. The city became suspicious of
Delia’s frequent off-work status and retained a private attorney to investigate. At an

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administrative interview, the attorney asked Delia if he was undertaking any home construction
projects, and Delia responded that he had purchased some rolls of insulation which were sitting,
still bagged, in his house. To verify that Delia was telling the truth, the attorney tried to obtain
Delia’s consent to allow a battalion chief to search his home for the rolls of insulation. Id. at
1072. Delia refused. The attorney next asked if Delia would go home and bring out the rolls
of insulation himself for inspection. Again, Delia refused. The attorney ultimately obtained
a written order from the fire chief ordering Delia to produce the insulation for inspection, to
which Delia complied. Id. at 1072-73. Delia subsequently filed a § 1983 suit claiming
violations of his Fourth Amendment rights.
The Ninth Circuit held that this compelled search of Delia’s own home was a Fourth
Amendment violation. Id. at 1075. However, the court went on to note that “this case does not
fit neatly into any previous category of Fourth Amendment law” and decided that the right at
issue was not clearly established. Id. at 1078. After reviewing the Supreme Court’s decisions
in Uniformed Sanitation Men and Gardner, the court concluded: “Neither case involved the
legality of a search under the Fourth Amendment. Accordingly, neither Gardner nor
Uniformed Sanitation Men would have put defendants on notice that [the fire chief’s] order to
Delia, with no attendant threat to his employment, constituted a violation of the Fourth
Amendment.” Id. at 1079. Accordingly, the fire chief who ordered Delia to comply with the
inspection and the firefighters who carried it out were granted qualified immunity. Similarly,
Uniformed Sanitation Men and Gardner were not sufficient to put Duchane and Bartok on
notice that their progressive series of questions and orders, with no attendant threat of
termination, rose to the level of a Fourth Amendment violation.
C. Retaliation Claims of Dailey, Clemente, and Taylor
Plaintiffs Dailey and Clemente asserted their Fourth Amendment rights by requiring
Bartok and White to get a warrant. Plaintiff Taylor did not answer the door, but the district
court found that in the light most favorable to plaintiffs, Taylor could be seen as exercising his
Fourth Amendment right by purposely avoiding Bartok and White. Clemente, 2010 WL
4636250, at *7. The question regarding these Plaintiffs is whether they have raised a genuine

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6The elements of a retaliation claim and the burden-shifting framework are taken from cases
involving alleged retaliation for exercising First Amendment rights. Both parties agree that this framework
applies here, and we find no reason to analyze a retaliation claim grounded on the Fourth Amendment
differently from one grounded on the First. As Thaddeus-X demonstrated, the essential framework for
analyzing retaliation claims is consistent across different contexts, constitutional and statutory. 175 F.3d
at 386-87, 394.
issue of material fact sufficient to survive summary judgement on their claim that they were
terminated in retaliation for exercising their constitutional rights.
“[R]etaliation for the exercise of constitutional rights is itself a violation of the
Constitution.” Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir. 1999) (en banc) (citing
Crawford-El v. Britton, 523 U.S. 574, 588 n.10 (1998)). This Circuit has outlined the basic
elements of a retaliation claim: “(1) the plaintiff engaged in protected conduct; (2) an adverse
action was taken against the plaintiff that would deter a person of ordinary firmness from
continuing to engage in that conduct; and (3) there is a causal connection between elements one
and two—that is, the adverse action was motivated at least in part by the plaintiff’s protected
conduct.” Id.; see also Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998). Once the plaintiff
meets her burden of establishing that her protected conduct was a motivating factor of the
adverse action, the burden of production shifts to the defendant to show, by a preponderance
of the evidence, that she would have taken the same action regardless of plaintiff’s protected
activity. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).6
Steps 1 and 2 are not disputed. The district court determined that Plaintiffs did not
establish a genuine issue of material fact on whether their exercise of Fourth Amendment rights
caused the termination, thus failing to meet their burden under Step 3.
Plaintiffs offer the following as evidence of a causal connection between their
termination and their assertion of their Fourth Amendment rights: (1) the water usage study was
incomplete and unreliable; (2) not all DPS employees with water use under 71 units were
investigated; and (3) Martin Ladd’s opinion was inconclusive as to whether Plaintiffs’ meters
had been tampered with. In Plaintiffs’ reply brief, they add the fact that (4) the notices of
Plaintiffs’ disciplinary hearings listed disobeying a direct order as one incident of misconduct.

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Reasons (1) and (2) have no bearing on the retaliation claim because the water usage
study and decision to investigate certain but not all DPS employees with less than 71 units of
water usage occurred before Dailey, Clemente, and Taylor ever asserted their Fourth
Amendment rights. Pointing to the deficiencies in the process leading up to the investigation
is simply an attempt to contest the merits of the adverse employment decisions cloaked in the
guise of a Fourth Amendment claim.
Neither do (3) and (4) establish a causal link. Ladd’s testimony applies to Brian
DePalma as well, who did not assert his Fourth Amendment rights, and the virtually identical
notices of hearing apply to all Plaintiffs; thus, it is unclear how these two pieces of evidence
show specifically that Clemente, Dailey, and Taylor were terminated in retaliation. Again,
Plaintiffs seem to be contesting the correctness of their terminations rather than connecting their
terminations specifically to their assertion of Fourth Amendment rights.
Further, even assuming Plaintiffs could show a causal connection, Defendants have met
their burden to show that they “would have reached the same decision . . . even in the absence
of the protected conduct.” Mt. Healthy, 429 U.S. at 287. While this “burden involves a
determination of fact and ordinarily is reserved for a jury or the court in its fact-finding role,”
Rodgers v. Banks, 344 F.3d 587, 603 (6th Cir. 2003) (internal quotation marks omitted), here,
a remand is unnecessary to determine whether Defendants would have terminated Plaintiffs
even had they acquiesced to White and Bartok’s orders. The terminations of Plaintiffs who did
not assert their Fourth Amendment rights—Stol, Ray, Werksma, and DePalma—answer in the
affirmative. We find it abundantly clear that, rightly or wrongly, Plaintiffs were terminated for
reasons related to the water usage study and meter inspection, not for asserting their Fourth
Amendment rights.
Though Plaintiffs claim that Duchane attributed Clemente, Dailey, and Taylor’s
assertion of rights to all of them, we find this the sort of “mere speculation, conjecture, or
fantasy” insufficient to survive a motion for summary judgment. Lewis v. Philip Morris Inc.,
355 F.3d 515, 533 (6th Cir. 2004) (internal quotation marks omitted). And, in any event, such
claim is contradicted by Plaintiffs’ termination letters, which were individualized. We agree
with the district court that “[e]ven in a light most favorable to Plaintiffs, the record evidence

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7We note that Brian DePalma’s claimed right is more accurately grounded on the freedom of
intimate association, which is protected as a fundamental liberty interest arising under the Fourteenth
Amendment’s Due Process Clause, rather than on the First Amendment’s free speech, assembly, and
petition rights. See generally Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984); Moore v. City of East
Cleveland, 431 U.S. 494 (1977); Johnson v. City of Cincinnati, 310 F.3d 484, 498-99 (6th Cir. 2002). In
any event, DePalma has failed to establish any causal connection between his family relationship and
termination.
8Even if this reason is unsatisfactory, as DePalma asserts, DePalma has still failed to show that
his investigation and termination were motivated by his relation to Ronald rather than his low water usage
and other evidence of tampering with his meter.
indicates that they were terminated for cause—not in retaliation.” Clemente, 2010 WL
4636250, at *7.
D. Retaliation Claim of DePalma
Plaintiff Brian DePalma alleges that Defendants violated his First Amendment right to
freely associate by terminating his employment because of his relationship with his brother,
Ronald DePalma, who admitted to tampering with his water meter.7 It is undisputed that
DePalma has a constitutional right to associate with members of his family, see Johnson v. City
of Cincinnati, 310 F.3d 484, 498-99 (6th Cir. 2002), and that his termination was an adverse
action. However, DePalma has failed to put forth any evidence upon which a reasonable
factfinder could find a causal connection between his familial relationship and his termination.
To show such a connection, DePalma points to the fact that he was not a subject of
investigation until after his brother Ronald admitted to tampering with his own meter. While
true that Brian DePalma was not visited on June 30 like the other Plaintiffs and was not
investigated until a search warrant was executed at his home on July 14, this does not support
an inference that Brian DePalma was investigated (and subsequently fired) because of his
relationship to Ronald.
Duchane had cause to suspect Brian DePalma of tampering with his meter prior to July
14, as the water usage compilation showed that he was the ninth lowest consumer out of all the
surveyed active city employees. Duchane responded appropriately by obtaining a warrant and
seizing his meter. Duchane testified that he, Bartok, and White decided to skip over Brian
DePalma’s house on June 30 because Ronald DePalma was on the list as well, and they thought
Ronald would immediately warn Brian about the visit.8 Bartok reported that Ladd found that

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9Schaffer was also among the nine lowest users and treated similarly to DePalma in that he was
not visited on June 30 but investigated later on July 14 pursuant to a search warrant.
the security pin in Brian DePalma’s meter was “hastily put in” and that it appeared to have been
pushed in and out a number of times. DePalma’s termination letter relied on these findings, as
well as the circumstantial evidence of his historically low water usage. As the district court
correctly found, both brothers independently met the criteria to be suspected of meter tampering
and terminated.
DePalma attempts to show that he was treated differently from similarly situated
employees to support an inference of retaliatory animus: he claims that his water usage was
greater than two other active city employees whose homes were not searched, Michael Schaffer
and Brian Keene. First, DePalma’s claims are factually false. Mike Shaffer’s home was, in
fact, visited and his meter seized on July 14.9 And DePalma’s usage was not greater than
Keene’s but the same (both 71 units). Secondly, upon closer examination, Schaffer and Keene
are not actually similarly situated to DePalma. Schaffer, for one, was found not to have
tampered with his meter. Keene, Duchane explained, was not investigated despite having the
same usage as DePalma because Keene was not part of DPS and Duchane wanted to start with
the nine DPS employees who were at the bottom of the water usage study.
Regardless of whether Duchane’s explanations are satisfactory, DePalma has simply
failed to present any evidence from which a reasonable jury could conclude that his
investigation and termination was motivated by his familial relationship, rather than his low
water usage or status as a DPS employee. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249-50 (1986) (“[T]here is no issue for trial unless there is sufficient evidence favoring the
nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable
or is not significantly probative, summary judgment may be granted.” (citations omitted)).
E. Municipal Liability
The City of Lincoln Park argues that Plaintiffs abandoned their claims against the City
because the claims were not set forth in Plaintiffs’ opening appellate brief. We agree. Plaintiffs
here made no mention of municipal liability in their opening brief, even though they were

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clearly on notice that the district court decided the municipal liability issue against them and
that it was a proper issue for appeal. Their claims are thus abandoned. United States v.
Johnson, 440 F.3d 832, 845-46 (6th Cir. 2006) (“[A]n appellant abandons all issues not raised
and argued in its initial brief on appeal.” (alteration in original) (internal quotation marks
omitted)).
Though Plaintiffs address the issue in their reply brief, “[w]e have consistently held . . .
that arguments made to us for the first time in a reply brief are waived.” Sanborn v. Parker,
629 F.3d 554, 579 (6th Cir. 2010). Further, even if had they raised their argument at the
appropriate time, we would find it waived on grounds that it is “adverted to . . . in a perfunctory
manner, unaccompanied by some effort at developed argumentation.” Langley v.
DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir. 2007) (internal quotation marks omitted).
Plaintiffs’ municipal liability argument consists of a conclusory allegation that Duchane is a
policymaker, the incorrect assertion that whether Duchane is a policymaker is a question of fact
for a jury, see Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (“[T]he identification
of those officials whose decisions represent the official policy of the local governmental unit
is itself a legal question to be resolved by the trial judge before the case is submitted to the
jury.”), and recitations of facts attempting to establish each Plaintiff’s innocence of meter
tampering irrelevant to the question of municipal liability. Even were we to consider Plaintiffs’
belated argument, they have given us nothing to consider.
III. CONCLUSION
Plaintiffs have abandoned their claims against Defendant Vaslo and the City of Lincoln
Park. On all other issues, we AFFIRM the judgment of the district court.

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