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Yurk v. Application Software Technology Corp.

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

January 17, 2018

DALE YURK, Plaintiff,



         For about a year, Plaintiff Dale Yurk worked as a software developer for Defendant Application Software Technology Corporation. The parties disagree as to why Yurk's employment ended. AST paints a picture of an employee who did not perform well, was given a chance to improve, but instead of seizing the opportunity, acted disrespectful to others and repeatedly raised issues outside the scope of his job duties. Yurk, on the other hand, says he was fired because he reported or was about to report to the public that AST was acting unlawfully. Yurk thus filed suit claiming that his termination was contrary to Michigan's public policy and Michigan's Whistleblowers' Protection Act.

         AST seeks summary judgment. (R. 34.) It argues, among other things, that no reasonable jury could find that Yurk's report to an attorney or threat to report to the City of Detroit made any difference in its decision to terminate his employment. As explained in great detail below, the Court agrees.



         Yurk, an experienced software developer, was hired by AST in August 2014. (R. 34, PID 431.) AST hoped that Yurk's technical skills would allow Timothy Brocker, Yurk's direct supervisor, to spend more time on sales and marketing. (See R. 34, PID 431.)

         Yurk was given a website design project in early December 2014 that did not go well. (See R. 34, PID 383, 456.) According to Shyam Kumar, Brocker's direct supervisor (and thus two levels above Yurk), Yurk was to complete “a very small, ” “one page” write-up on AST's middleware practice. (R. 34, PID 456.) But according to Yurk, Shyam “wanted a brochure, and I said, Shyam, you know, that's media, that's not my specialty, I'll make an outline for you.” (R. 34, PID 384.) In either case, Shyam was “unhappy” with Yurk's work product. (R. 34, PID 384.) This apparently prompted Shyam to question a friend of Yurk's in an attempt to find out what Yurk's personality was like or, according to Yurk's friend, get “ammunition” on Yurk. (R. 34, PID 384.) Shyam also spoke with Yurk's immediate supervisor. (R. 34, PID 384, 456.) Shyam asked Brocker to either ensure that deliverables met his expectations or to allow him to work directly with Yurk or, if neither of those were viable solutions, “to let [Yurk] go.” (R. 34, PID 456.) This prompted Yurk to talk to Fatima Beach, the vice president of human resources at AST. Yurk thought the firing option was unreasonable given that he had not been trained to create media. (See R. 34, PID 388.)

         Beginning in December 2014, and through April 2015, Yurk worked on a project that AST was doing for Underwriters Laboratory. From Brocker and Shyam's perspective, this project also did not go well. (R. 34, PID 431.) Brocker recalled that because Yurk often did not complete project status reports appropriately, he was repeatedly forced to step in to handle that task. (R 34, PID 433.) Shyam recalled: “So [Yurk] was supposed to be leading that project, and we used to have a lot of issues, challenges; the quality of the report was not good, data was not right.” (R. 34, PID 453.) Brocker also recalled that instead of “roll[ing] up his sleeves” to do certain tasks on the Underwriters Laboratory project himself, Yurk asked for another person (“resource” in AST parlance) to be added to the project. (R. 34, PID 436.)

         In January 2015, Brocker and Yurk talked about “whether or not [Yurk] wanted to start looking for another position” or try to improve his relationships with management and others at AST. (R. 34, PID 434.) Brocker recalled, “[Yurk] said to me yes, you know, I can be a bit abrasive and things but I want to work through that, I want to be here.” (R. 34, PID 434.)

         Around this time (or not too long thereafter), Brocker completed Yurk's performance review. He gave Yurk a “satisfactory” rating on a scale of “unsatisfactory, ” “satisfactory, ” and “exceeds expectations.” (R. 34, PID 434.) Brocker later testified that while the “satisfactory” was accurate, he gave Yurk the rating in part because he “wanted to give [Yurk] . . . a chance and not take him down so early in his tenure with AST.” (R. 34, PID 434, 445.) Yurk also received a raise and a bonus in 2015. (R. 34, PID 459.)


         During Yurk's employment at AST, AST was working on a $17 million project for the City of Detroit. (R. 36, PID 688.) The project was high visibility and critical to AST. (R. 34, PID 488; R. 36, PID 688.) The project team had “40-plus” members, led by Usha Vargas. (R. 34, PID 503.) Shyam was also involved in the City project. (R. 34, PID 404.) Brocker was not.

         In May or June 2015, Zeeshan Baig was leaving (or, in AST parlance, “rolling off”) the City project and Yurk was assigned (or “rolled on”) to the project. (See R. 34, PID 389, 390, 439, 488.) Baig explained, “my three, four month's knowledge of the integration requirements [for the project] . . . I wanted to transfer to Mr. Dale [Yurk] and Mr. Kant.” (R. 34, PID 488.)

         “Mr. Kant” was Mrityunjay Kant and the parties dispute whether he was Yurk's superior on the City project. At AST, in addition to a company supervisor (Yurk's was Brocker), an employee may have a supervisor on a particular project (Brocker was not working on the City project). (R. 34, PID 460.) Team leader Vargas testified that she held Kant “responsible for the delivery” of the architecture on the City project. (R. 34, PID 504.) Indeed, in one email, Vargas directed Yurk to “follow [Kant's] direction on this project.” (R. 34, PID 398, 504.) In that same email exchange, Shyam similarly stated, “[Kant] is leading this project, I have 100% faith in his ability, so we have to follow his path including me.” (R. 41, PID 862.) As for Kant's take, he later recalled, “all of the middleware integration team members, ” including Yurk, “were supposed to take instructions from me.” (R. 34, PID 473.)

         Yurk viewed Kant's role on the City project differently. At the time, Kant and Yurk had the same job title at AST. (R. 34, PID 392.) Thus, from Yurk's perspective, it was Vargas who was his direct supervisor on the City project. (R. 34, PID 392-93, 398.) Yurk testified: “every project someone has got to divvy up the work, and that was [Kant's] role. I mean, we all had our individual roles, but . . . it wasn't like I reported to him[.]” (R. 34, PID 392.)

         Yurk, Kant, and Baig did not get off on the right foot on the City project. In June 2015, shortly after Yurk rolled on, the three planned to meet onsite in Detroit (apparently so that Baig could transition his knowledge to Yurk and Kant). (R. 34, PID 490.) Yurk had been approved to work at his home in Fenton the day of the planned meeting. (R. 34, PID 390.) Kant was to fly in from Illinois the night before the meeting but missed his flight. (R. 34, PID 472, 535.) Yurk did not receive notice from Kant that he would not be attending until after Yurk had already made the hour-long drive to the Detroit office. This upset Yurk: “I said to [Baig], you know, this is bullshit, I came in here-and then I think that this is rude of Mrityunjay [Kant]-and, you know, you can tell him I said it's rude, and I went back to my desk to pack my computer up, and Zeeshan [Baig] came up to me and he said, you can't talk about Mrityunjay that way. And I said the hell I can't, I can talk about-I can tell that you that Mrityunjay-that this was rude, this was unprofessional behavior. And [Baig] got very upset that I would say something about Mrityunjay.” (R. 34, PID 390.) Baig recalled that Yurk was loud and that “the hall was full of our team from AST people and maybe some customers on-site as well.” (R. 34, PID 490.)

         Both Baig and Yurk made reports to HR about the incident. Yurk-apparently in the “sarcastic fun” tone that he often used in emails to his supervisor-wrote the following to Brocker: “I'm not going to do the HR thing. If I'm in trouble over that minor of an [in]cident, then so be it. The nerve of that overly sensitive little prick.” (R. 34, PID 395.)

         A few days later, Vargas sent an email wishing Baig well on his next project and complimenting Baig's work on the City project. (R. 34, PID 499.) Yurk, still upset about Baig's HR complaint, sent Baig a sarcastic response that included language meant to “hurt” Baig. (R. 34, PID 395.) Yurk wrote: “Well I'm sure that Usha [Vargas] is really technically cognizant with your SOA [Service-Oriented Architecture] contributions to this project. I didn't know that she was so involved in the SOA architecture or technically capable of determining you skillset! Wow! Please don't worry that her message might be generic to anyone leaving the project I'm sure she's right. I'm sure your contributions were exemplary. I'm sure well all miss you. Me, of course, the most! For sure?” (R. 34, PID 498.) Yurk would later testify: “I am very, very disappointed in . . . myself to have sent [that email] . . . . This was my frustration with Zeeshan over the HR complaint, and I regret this very much. And I later apologized to him for it.” (R. 34, PID 395.) Baig accepted Yurk's apology and the two moved on. (R. 34, PID 402, 409.)

         While Yurk's issue with Baig was limited to the HR complaint Baig had filed, his “attitude toward Mr. Kant . . . was a totally different matter.” (R. 34, PID 402.) From Yurk's perspective, he and Kant “were equals, ” yet Kant had “some sort of control issue” and would tell Yurk things like “you shall respect me.” (R. 34, PID 397, 402.) Yurk recalled discussing with Brocker: “I . . . said, Tim, I'm having problems with Mrityunjay. Tim said everybody on Mrityunjay's projects have problems with him, he's a control freak, he's a prick, just don't worry about it.” (R. 34, PID 403.) Yurk recalled, “if [Kant] wanted to treat me poorly, then I guess I was willing to treat him poorly as well.” (R. 34, PID 397.) Yurk would repeatedly call Kant “MK, ” which Yurk knew irritated Kant. (R. 34, PID 397, 409.) (Although Baig also referenced Kant as MK in an email, unlike Yurk, he did so once, apologized, and stopped. (R. 34, PID 490.))

         On July 6, 2015, Yurk emailed Brocker complaining about a task Kant had assigned. Yurk wrote in part, “Damn I'm sick of this. When things were going ok at [Underwriters Laboratory] I turned down two good job offers. What an idiot! Ah, don't mind me. Just the normal Monday in Detroit blues.” (R. 41, PID 866.)


         The difficulties between the team members on the City project continued over the next 10 days.

         1. July 7, 2015

         On July 7, an email exchange with Baig led Yurk to question whether AST was designing software for the City in a legal manner. Yurk asked Baig why the software for the City project was storing a username and password for each interface call (instead of a single username and password) and why the usernames and passwords were being stored in a database table (instead of, for example, a resource file). (R. 34, PID 772.) Baig emailed back that it was to “make our product flexible.” (R. 34, PID 771.) To which Yurk responded: “[T]his is not a product, but rather a solution. This design adds a lot of effort. Doesn't Detroit have to pay for it? Don't they own the Intellectual Property?” (R. 36, PID 771.) Baig emailed back: “From day 1 our primary goal was to design this solution as a product which could be reused . . . . Detroit is not paying for it they are purchasing [a Service-Oriented Architecture] license only, this is AST's product similar to EBS-WAM solution we have done at other clients.” (R. 36, PID 770.) Yurk replied, “Isn't Detroit paying for our consulting time to implement this particular solution? Which, as you point out, could have been done far quicker with BPEL processes. I don't know about you, but I'm billing all my time to the project. None of this goes to ‘product development.'” (R. 36, PID 770.)

         At this point, Kant, who had been copied on the emails between Yurk and Baig, intervened: “These discussions and reviews have already been done and appropriate design was created as a result. If you [have] questions related to the current design decisions or have questions related to why you were not consulted during this phase, please address them to me directly. As far as product discussion is concerned it's not something that is relevant to the project, please do not engage in discussions which are not relevant to the project.” (R. 36, PID 770.) Kant would later explain that he told Yurk to direct his design questions to him because “I was the one assigning all the tasks and leading the integration part of the project. . . . I understood Mr. Yurk was asking a design question to Mr. Baig, and the answer that Mr. Baig gave was not the answer that was correct from my assessment.” (R. 34, PID 479.) Yurk responded to Kant: “Geez, sorry I included you in the [email] thread. It was a philosophical discussion between Zeeshan [Baig] and I. It was not intended to provoke you into a dissertation. So sorry.” (R. 36, PID 769.) To which Kant wrote: “Kindly stick to only relevant discussions.” (R. 34, PID 769.) This prompted Yurk to respond: “Kindly allow me to decide what is relevant for discussion subject matter. There is absolutely no need to act like a dictator. I am a person with the same rights that you have. If you have a problem with that, go read the constitution.” (R. 36, PID 769.)

         Vargas (the manager of the City project) had been copied on the back and forth between Yurk and Kant. Vargas emailed Beach in HR: “Hi, Fatima. Dale is causing unnecessary friction by constantly challenging his team leads. I will schedule a meeting.” (R. 34, PID 509.)

         Also on July 7, Yurk emailed Brocker: “It sure looks like Mrityunjay [Kant] and Zeeshan [Baig] came up with a ‘product', rather than the cheapest solution. Why on earth would the [City] ever agree to pay consulting fees for a longer engagement to provide AST with a commodity? Is this something the two of them did? Wouldn't the client normally own the Intellectual property rights? Does this seem kosher to you? Do you think Shyam [Kumar] knows about it?” (R. 34, PID 811.)

         Yurk testified that after learning of the multiple-username design, he tailored his work to avoid furthering that design. (R. 34, PID 421.) Yurk explained that if he was assigned a task that he thought required him to engage in unlawful activity, “I would not refuse verbally, I just ...

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