United States District Court, E.D. Michigan, Southern Division
KENNETH J. BOUCHARD, Plaintiff,
CITY OF WARREN, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO
DISMISS/COMPEL IME [#28] and DENYING IN PART AND GRANTING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Page Hood Chief Judge, United States District Court.
filed this cause of action on October 17, 2014, alleging that
he was constructively discharged in violation of the Family
and Medical Leave Act (“FMLA”), the Michigan
Whistleblower Protection Act (“WPA”), and
Michigan public policy. On June 1, 2016, Defendant filed a
Motion to Dismiss Claim for Non-economic Damages and/or to
Compel Plaintiff's Attendance at IME (“Motion to
Dimiss/Compel IME”). [Dkt. No. 28] On June 20, 2016,
Defendant filed a Motion for Summary Judgment. [Dkt. No. 33]
The Court held a hearing on both motions on August 24, 2016.
The parties have fully briefed both motions. For the reasons
that follow, the Court: (1) denies Defendant's Motion to
Dismiss/Compel IME; and (2) denies in part and grants in part
Defendant's Motion for Summary Judgment.
was hired by Defendant as an Assistant Planner in 2011. In
July 2013, he was promoted to City Planner 1. His immediate
supervisor was Planning Director Ronald Wuerth
(“Wuerth”). On September 24, 2013, Plaintiff,
without authorization or approval from Wuerth appeared at
City Council meetings and assisted City Councilwoman Kelly
Colegio (“Colegio”) in a Powerpoint presentation
(“PPP”) that raised questions and concerns about
the appropriateness or legality of Defendant's (or some
of Defendant's departments') policies, rules, and
procedures in dealing with certain properties. According to
Wuerth, the meeting was “infamous.” Dkt. No. 38,
Ex. 1 at 55. The concerns expressed at this presentation were
similar to those expressed by Plaintiff in an email sent a
day earlier (September 23, 2013) to Richard Sabaugh,
Defendant's Director of Public Service; Mayor James
Fouts; and Greg Paliczuk, Building Department Director. Dkt.
No. 38, Ex. 7. According to Wuerth, a parade of people,
including Mayor Fouts and Sabaugh, came to Wuerth's
office to complain to him about Plaintiff's participation
in the presentation, and they were “pretty f*@king
upset.” Dkt. No. 38, Ex. 1 at 13, 20, 46.
September 27, 2013, Wuerth met with Plaintiff, and Wuerth
told Plaintiff that what he did was inappropriate and that
Plaintiff should have brought the issues raised in the PPP to
him and the Mayor instead of Warren City Council. Dkt. No.
33, Ex. D at 33, 35. Wuerth told Plaintiff to stay out of the
business of other departments, stay focused on planning work,
and stay above the issues. Dkt. No. 33, Ex. C at 58-59, 62,
73-78, 94, 108. For more than 50 minutes, Wuerth met with
Plaintiff, during which time Wuerth cursed, berated, and
yelled at Plaintiff. Dkt. No. 38, Ex. 9 and 10. In the
meeting or since, there is evidence that Wuerth communicated:
• Plaintiff's job was in danger because of his
participation in the presentation. Dkt. No. 38, Ex. 1 at 24.
• Funding for the Planning Department, including
Plaintiff's position, was in jeopardy. Id. at
• Plaintiff would face repercussions with regard to his
job. Id. at 26.
• Everybody is coming at you (Plaintiff). Dkt. No. 38,
Ex 10 at 14.
• Plaintiff would be on probation and it would be
extended. Id. at 18, Dkt. No. 38, Ex. 1 at 24, 42.
• For the first time in Plaintiff's tenure, he would
be given a performance evaluation. Dkt. No. 38, Ex. 1 at 41.
• Plaintiff would experience “blowback” as a
result of his actions. Id. at 39-40.
• Wuerth was not surprised that Plaintiff was already
experiencing “blowback.” Id. at 44.
• Wuerth was not surprised that Plaintiff was getting
the silent treatment. Id. at 44-45.
• Plaintiff would never again present to City Council.
Id. at 33.
• “I had the Mayor stop me in the f#*king hallway
and for the third time he said, ‘This is'---he is
very upset. I wouldn't say what he said. This is what
I've been getting.” Dkt. No. 38, Ex. 1 at 45; Ex.
10 at 25.
• If the Mayor would have seen the presentation in
advance he would have said “No, this isn't going to
city council. We don't put this up before the public like
this.” Dkt. No. 38, Ex 10 at 7.
• Plaintiff was banned from Sabaugh's Public Service
Division (a division consisting of 9 departments and crucial
to Plaintiff's ability to do his job). Id. at
• It was not relevant that Plaintiff had presented
truthful information at the City Council Meeting.
Id. at 25.
• Wuerth questioned why Plaintiff worked at the City of
Warren if he was concerned about illegal conduct.
Id. at 41.
• Wuerth did not “give a shit” about rumors
of illegal conduct at the City of Warren and
“doesn't care if he sees people passing money to
each other in the hallway.” Id. at 40.
• Regarding some of the materials that Plaintiff
prepared for the City Council meeting “the only problem
with the map is that it went out to the public.”
Id. at 43.
• Wuerth would have ordered Plaintiff not to participate
in the presentation. Id. at 26.
• Any material that goes to City Council must be
pre-approved by Fouts. Id. at 27.
• The mayor can prohibit a member of City Council from
bringing information to the public. Id. at 28.
• Plaintiff should be doing only work assigned to him by
Wuerth, “not indulging in the concerns of the
City.” Id. at 35.
• As a result of his presentation, the building
department had f*#king zero feelings toward ...