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Bouchard v. City of Warren

United States District Court, E.D. Michigan, Southern Division

March 31, 2017

KENNETH J. BOUCHARD, Plaintiff,
v.
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 [#33]

          Denise Page Hood Chief Judge, United States District Court.

         I. INTRODUCTION

         Plaintiff 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.

         II. BACKGROUND

         Plaintiff 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.

         On 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 24-25.
• 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 39.
• 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 ...

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