Ely v. Dearborn Heights Sch. Dist. No. 7
| Decision Date | 14 December 2015 |
| Docket Number | Case Number 14-14500 |
| Citation | 150 F.Supp.3d 842 |
| Parties | Theresa Ely, Plaintiff, v. Dearborn Heights School District No. 7, Todd Thieken, and Jeffrey L. Bartold, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
Adam Michael Taub, Robert D. Fetter, Miller Cohen P.L.C., Detroit, MI, for Plaintiff.
John L. Miller, Timothy J. Mullins, Giarmarco, Mullins, Troy, MI, for Defendants.
Plaintiff Theresa Ely filed suit against her employer and her supervisors after they disciplined her for speaking out about possible asbestos contamination at a school where she worked as a part-time custodian. She alleges that the defendants unlawfully restrained her right to speak and retaliated against her in violation of the First Amendment. Both sides filed motions for summary judgment. The defendants contend that the plaintiff has failed to advance any viable claim that can be supported by the record now before the Court, and the individual defendants argue that they are entitled to qualified immunity. The plaintiff contends that no fact question remains for trial on her claims and the Court should grant judgment as a matter of law in her favor and award compensatory and exemplary damages. The plaintiff has failed to establish a claim against the Dearborn Heights School District Number 7 under Monell v. Department of Social Services , 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), but fact questions preclude summary judgment in favor of the individual defendants and the plaintiff. Therefore, the Court will grant in part and deny in part the defendants' motion for summary judgment, deny the plaintiff's motion for summary judgment, and dismiss the case against the School District only.
Ely began working for defendant Dearborn Heights School District Number 7 as a substitute custodian in 2009. During the summer months of 2011 and 2012, she worked as a custodian at Annapolis High School. During the 2012 summer months, the plaintiff's supervisor directed her to sand floor tiles in the school building, but the plaintiff objected because she was told during the previous summer that the tiles contained asbestos. The supervisor told Ely that “sanding the tiles would be fine,” and when she and other workers continued to object, she was told to collect a sample of the dust from the floor tiles for testing. In September 2012, a coworker told Ely that the testing of the dust sample revealed no asbestos. However, in January 2013, Ely learned that another employee who worked at Annapolis High School had died of mesothelioma, and members of the deceased employee's family told Ely that the school district “had sanded the asbestos floor tiles for years.” Ely became concerned, particularly when she recalled that during the summer months there were numerous employees and students of the school district present in the building while the floor tile sanding was done. Ely testified that she even remembered that she saw students on one occasion writing messages in the sanding dust that was collected on the floor, while Ely and a coworker were busy sanding and cleaning up the dust.
In March 2013, Ely received a copy of what appeared to be a report of testing done on dust samples taken from the Annapolis school. She questioned the authenticity of that report because (1) it referred to difficulty encountered in collecting samples due to “fire damage,” when there was never any fire at the school during the summer months in 2012; (2) the report referred in several places to conditions at “the home,” when the school obviously is not a residence; and (3) the report stated that samples were collected by the inspector, when the samples from the Annapolis school actually were collected by one of Ely's co-workers. Ely also points out that the report is undated and unsigned, and she maintains that the inspector whose name appears on the report stated that he did not write it. She contends that electronic metadata embedded in the Adobe Portable Document Format (PDF) version of the report indicates that it was created on September 14, 2012 by “Kellsey Whittaker,” who the plaintiff asserts was a contractor working for the school district.
In April 2013, after reviewing the questionable testing report, Ely contacted the Michigan Occupational Safety and Health Administration (“MIOSHA”) and filed a complaint stating her concerns about the possible asbestos hazard at the Annapolis school. She also discussed her concerns with family members, co-workers, and other members of the community, and she contacted a local television news station, which sent a reporter to her home to interview her. On May 15, 2013, the MIOSHA investigator assigned to the complaint told Ely that samples from the floor tiles she had sanded in 2012 were tested and found to contain asbestos, and the investigator told her that the agency was going to issue citations to the school district for the resulting safety and health violations. He also told Ely that she should be tested to determine if she had suffered any possible health consequences from the asbestos exposure. The next day, the district's Superintendent of Schools, defendant Jeffrey Bartold, sent a memorandum to all employees stating that there were no asbestos hazards at any of the district's schools; that letter cited the negative test results from the 2012 testing report.
On May 23, 2013, Bartold sent a letter of reprimand to Ely directing her to stop spreading “false rumors” about asbestos hazards at the district's schools. The letter stated:
Plf.'s Mot for Summ J. [dkt. #20], Ex. 6, Letter of Reprimand dated May 23, 2013 (Pg ID 371-72). The letter indicates that a copy was placed in the plaintiff's personnel file.
On June 5, 2013, inspector Michael T. Mason, a Health Manager with MIOSHA, sent a letter to Ely stating that the agency had inspected Annapolis High School and that the “investigation revealed conditions which were determined to be in violation of the Michigan Occupational Health Standards.” The agency's investigation report that was enclosed with the letter stated that an inspection was conducted on April 30, 2013 at Annapolis High School, and that “[t]his investigation has resulted in a citation.” The report cited the following specific violations that were assessed as a result of the inspection:
Ex. 8, Report of Investigation dated June 5, 2013, at 2 (Pg ID 389). The report specifically noted that investigators had observed “9x9 vinyl floor tile material,” described as “5% Chrysotile-Tile” (Chrysotile appears to be a form of asbestos). The agency assessed three citations against the school district which were noted as “serious,” and it imposed a total of $13,500 in fines. The agency also directed the school district immediately to address the violations by (1) performing “initial monitoring” of employees who may have been exposed to asbestos; (2) at least once per year giving asbestos related safety training to custodial employees working in areas with asbestos-containing floor materials; and (3) adopting specific procedures during floor maintenance to ensure that machines used to clean and polish floors would not damage the asbestos-containing floor tile. The specific directions given for floor maintenance were as follows:
Prohibit sanding of asbestos-containing flooring materials. Conduct stripping of finishes using wet methods and low abrasive pads at speeds lower than 300 revolutions per minute. Perform burnishing or dry buffing only on asbestos-containing flooring that has sufficient...
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