UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
___________________________________
ELIZABETH ROSE WHITE McDONNELL,
Plaintiff, File No.
v. Hon.
KALAMAZOO COUNTY, and
STEPHANIE MOORE WILLIAMS
and JULIE ROGERS, in their official
and individual capacities,
Defendants.
_________________________________________________________________
COMPLAINT AND JURY DEMAND
_________________________________________________________________
Complaint
Plaintiff Elizabeth White McDonnell by and through her attorneys,
Pinsky, Smith, Fayette & Kennedy, LLP, states as follows:
Jurisdiction, Venue, and Parties
1. This is an action requesting the Court to remedy violations of
Plaintiff’s First Amendment rights pursuant to 42 U.S.C.§ 1983,; violations of
Michigan’s Whistleblower’s Protection Act (“WPA”), Mich. Comp. Laws §
15.361, et seq.; the tort of violation of public policy under Michigan law,
violations of the Open Meetings Act (OMA) and a breach of contract claim.
2. The Court has jurisdiction over this action pursuant to 28 U.S.C.
§§ 1331 and 1367.
3. Plaintiff Elizabeth White McDonnell (Hereinafter, “White”) is a
resident of Kent County, Michigan, and of the Western District of Michigan,
Southern Division.
4. Defendant Kalamazoo County (“the County”) is a local unit of
government organized pursuant to the law of the state of Michigan; a state
actor; and an employer of Plaintiff under state law. The County conducts its
business throughout Kalamazoo County, which is located in the Western
District of Michigan, Southern Division.
5. Defendant County was and is a public body as set forth in MCL
15.361(d).
6. Defendant Stephanie Moore Williams (hereinafter “Moore”) is
upon information and belief, a resident of Kalamazoo County, Michigan.
Defendant Moore Williams is an elected official as a County Commissioner
and former Board Chair for the Kalamazoo County Commission. Defendant
Moore Williams was at all material times an employer under the Acts and
laws set forth below.
7. Defendant Julie Rogers (“Rogers”) is, upon information and
belief, a resident of Kalamazoo County, Michigan. Defendant Rogers is an
elected official as a County Commissioner, and current Board Chair for the
Kalamazoo County Commission. Defendant Rogers was at all material times
an employer under the acts and laws set forth below.
8. At all times material to this Complaint, these Defendants acted
toward Plaintiff under the color of the statutes, ordinances, customs and
usage of the State of Michigan, and County of Kalamazoo.
Factual Allegations
9. Plaintiff was hired by Defendant Kalamazoo County in February
2018. She entered into an Employment Contract with the County on March
21, 2018. (Attached as Exhibit A). The term of the agreement was for:
[A] 3 year period commencing on March 19, 2018, and continuing until
March 18, 2021, unless terminated by either the Board or the
Employee, with or without Cause, pursuant to the termination
provisions of this Agreement. Each party will provide at least 60
calendar days prior written notice to the other party . . .
10. Immediately before arriving at her new offices, she had been
made aware that dysfunction existed on the County Board, yet was not
allowed to meet the corporate counsel staff or board members before arriving.
She was told that her mission was “to help the majority of the Board move
business forward.”
11. Within her first few weeks, it became clear that the County
Board meetings were chaotic, disorganized and were not conducted within
the requirements of the Open Meetings Act. While there was a purported
agenda for the meetings, any subject might come up, be discussed, and a
motion made for the subject to be voted on.
12. As a result, White recommended that several changes needed to
be made to the bylaws to limit the chaos and to help the board stick to the
written agenda. These new bylaws were adopted in August of 2018 and did
help to keep the chaos down in the following months.
13. In April of 2018, the Vice Chair of the Board (DS) brought to her
a 990 form for a nonprofit “Mothers of Hope” filed November 28, 2017, which
showed that the Board Chair Moore was paid $34,326 by the nonprofit
organization as a “consultant”; Moore’s mother, Gwin Lanie, is the president
of Mothers of Hope. DS was very concerned that something improper was
going on as the County does business with that organization, that there was
corruption involved, and urged Plaintiff White to look into it.
14. On August 31 of 2018, Plaintiff received a call from another
County Board Commissioner (SM), who reported numerous improprieties on
the part of the County Treasurer, involving among other things, properties
acquired by the County Treasurer in tax foreclosure, which were then given
away to third parties. It was later discovered by Plaintiff White that one
such property was transferred to Mothers of Hope after receiving more than
$38,000 in improvements at public expense.
15. Plaintiff White met with the County Treasurer to obtain
information about the matter and to get the Treasurer’s explanation of the
situation.
16. Plaintiff White, the following week, informed Prosecutor Jeff
Getting of the reports and was told that a meeting would be set up with
Michigan State Police Detective Lieutenant Chuck Christensen. Plaintiff
met soon after with Christensen at Getting’s office. White was told by the
State Police to help bring information to them and where to focus her
information gathering.
17. Plaintiff White emailed the Board of Commissioners regarding
the report and the investigation on September 10. Plaintiff White reported
information about this investigation that involved the County Treasurer and
then-Board Chair Moore. One of the Commissioners (MQ) sent the email to
the media, which then published the email.
18. On Wednesday, September 12, the County Treasurer was in the
County Administrator’s office and stated loudly, “I’m coming after you
(pointing to the County Administrator) and her (pointing to White’s office
door).”
19. On September 18, Chair Stephanie Moore without warning and
during a budget discussion stated that she wanted to review White’s
performance during the open meeting. She stated, “I don’t know what
[White] does all day,” and accused her of racism and sexism. Defendant
Moore refused to allow White to respond at the meeting, and then accused
her of breaching attorney client privilege by leaking her own 9/10/18 email to
the media. This accusation was knowingly false as Moore had previously
received information that it was not White who had given the email to the
press, but another Commissioner.
20. Defendant Moore continued during public meetings to disparage
Plaintiff White for the rest of 2018.
21. In January of 2019, new Board Chair Defendant Julie Rogers and
new Commissioner Meredith Place immediately drafted a new bylaw
amendment, without any input from Counsel, which removed the safeguards
that Ms. White had put in place.
22. Also, in January of 2019, a consultant was hired by the County to
do a Diversity and Inclusion study of the Commission and County staff.
23. Early in 2019, Defendant Moore sent a FOIA request to Plaintiff
White’s former employer, the City of Grand Rapids, after she had declared,
falsely, that Plaintiff White was “fired” from her last job. Plaintiff White
worked at the City of Grand Rapids for over 15 years, had a spotless record,
served under three different mayors, three different City Attorneys and
scores of Board Commissioners and Department heads. She left under a
restructuring of the Department.
24. The investigation into the County Treasurer’s potentially illegal
and/or unethical activities continued through the Spring and Summer of
2019. The scope of the investigation went far beyond the issues Ms. White
brought to the Prosecutor.
25. During that timeframe, in a public meeting on August 27, 2019,
Defendant Stephanie Moore openly asked Board candidates being
interviewed whether they could make hard decisions if they were on the
board, and gave as an example, “Are you ready to fire the Corporate Counsel
and the Administrator?” referring to Plaintiff White. This was done
repeatedly, with each candidate interviewed.
26. In February of 2019, Defendant Rogers began to criticize and
micromanage Plaintiff White’s legal work, though she did not have a legal
background. She began to set unrealistic timelines for Ms. White to review
contracts and resolutions requiring close scrutiny, accused her of not getting
work done that she had in fact performed, and began lecturing her on board
procedure, though the Commission rarely followed procedure or the OMA.
27. In March of 2019, Plaintiff White’s performance evaluation was
conducted at the direction of Chair Rogers. The performance evaluation was
not only unfair and inaccurately portrayed the good work of Ms. White, but
also contained disparaging and untrue remarks from one or two of the
reviewers. Plaintiff White was ultimately able to request a closed session
discussion under the Open Meetings Act. According to her contract, she was
given a raise.
28. Defendant Rogers reached out to several elected officials to
review White – a process that had never been done before in evaluating
County employees. The evaluations that were returned to Rogers from
Sheriff Fuller and Prosecutor Getting were favorable, but were not included
in the evaluation, and were not put in White’s personnel folder.
29. In June of 2019, Plaintiff White was interviewed by the Michigan
State Police regarding the reports regarding the Treasurer, Mothers of Hope,
and Commissioner Moore. Commissioner Moore throughout 2019 repeatedly
demanded to know how much time was spent on the investigation, coming
down harder on Plaintiff White and Administrative staff as the year
progressed. Moore and others insisted that White and others account for
every hour they spent on answering questions in the course of the
investigation and providing information to the police, though it was not
within their control.
30. In July of 2019, the results of the workplace study of the County by
the hired Consultant were released. According to the consultant, diversity and
inclusion issues couldn’t even be addressed based on the circumstances. The
consultant issued a scathing report which deemed the Board to “exhibit a
lack of understanding of their role as public servants.”; that they
demonstrated a “lack of trust in administration and upper management” and
had an “extreme lack of respect toward each other, toward Administrators,
and county employees in general.” The report further stated that, “the terms
‘toxic’ and ‘dysfunction’ were used to describe the Board of Commissioners by
multiple people, several times.”
31. This was no surprise to Ms. White as she had been publicly and
relentlessly abused at public meetings by certain Board members. Over the
course of her tenure with the County, the abusive treatment was so
noticeable that members of the public as well as County employees regularly
approached Ms. White to address the attacks on her.
32. At the October 1 Committee of the Whole (COW) meeting, after a
motion was made that was improperly introduced by Ms. Place, Ms. White
raised her hand and was recognized by the Chair Place to speak. Ms. White
explained that one could not make a motion and have a non-agenda item
introduced and adopted in the same meeting, per the COW bylaws. Ms. Place
got upset and sternly commented that Ms. White was being “insulting” and
“demeaning” to her, chastising Plaintiff White for doing her job.
33. At a meeting with Defendant Rogers and Vice Chair Tracy Hall,
Plaintiff White asked why she was getting so much push back from the
Commissioners and wanted to know why regular business could not be
accomplished. Ms. Rogers told Plaintiff White that she better think about
leaving the County because several members of the Commission wanted to
vote her out. She told Ms. White that the Commissioners would “drag [her]
through the mud” and “ruin [her] reputation” if she didn’t resign.
34. At the next regular meeting on October 15, there was a two-hour
closed session meeting presumably, in part, regarding Ms. White’s
employment. White was not given the opportunity to attend this meeting,
which was unusual, nor was she given the option to have it held in open or
closed session.
35. After the Commission members came back into open session, a
Commissioner made a motion to award a $90 million dollar contract bid for a
huge County construction project that was not on the agenda. Quickly, and
without any discussion whatsoever, the board adopted it on the spot. There
was no opportunity for Ms. White to speak up at the time of the motion, and
no indication that the subject was going to be brought up at all.
36. Though Plaintiff White was under fire by certain Board members
and was publicly chastised for bringing up procedural violations during
meetings, she sent a memorandum to labor counsel reporting and
documenting what occurred as to the construction bid
37. On or about October 18, 2019 a FOIA request was received by the
County from the Miller Law Firm for all communications among and between
County Commissioners and staff regarding the award of the $90-million-
dollar construction contract. As the County’s designated FOIA Coordinator,
Plaintiff White was then tasked with the process of gathering text messages,
voicemails, and other communications from members of the Commission
regarding the recent contract award.
38. On October 30 via electronic mail, a FOIA request came to the
County from MLive requesting Plaintiff White’s personnel file and
specifically any evaluation. Upon information and belief, certain Board
Commissioners reached out to MLive and suggested that the reporters ask
for this.
39. Plaintiff White was put on administrative leave to begin October
31, 2019.
40. On Wednesday November 6, without the subject being on the
agenda, a closed session was held presumably regarding the termination of
Plaintiff White from her position. Plaintiff was given no notice whatsoever of
the meeting about her employment status and was not asked if she wanted
the meeting to be open or closed. When the Commissioners came out into
open session, there was no discussion, no deliberation, and it was announced
that Plaintiff White was terminated pursuant to 4(a) of her Employment
Contract unless she resigned by Friday November 8, by 5:00 pm.
41. Defendant Rogers and Defendant Moore made statements to the
media regarding the termination after the meeting. That evening, Defendant
Moore posted the MLive article about White’s termination on her personal
Facebook page, from her personal Facebook page to her Commissioner
Facebook Page, then posted again on her Commissioner Facebook page. All of
these posting were “public”. Moore also posted the article on her LinkedIn
page.
42. Plaintiff White chose not to resign her employment.
43. Contract provision 4a. states:
Termination and Severance.
A. The employee’s employment Agreement may be terminated without
cause by a majority vote of the total number of the County’s Board
members elected and serving, at a meeting held in compliance
with the Open Meetings Act.
44. Plaintiff White has and will suffer significant damages including
economic damages, emotional and mental distress damages, and reputational
damages due to the actions of Defendants.
COUNT I
VIOLATION OF FIRST AMENDMENT RIGHTS PURSUANT TO 42 USC §1983
45. Plaintiff re-alleges and incorporates by reference all allegations
in all preceding paragraphs.
46. Plaintiff, as a private citizen and public employee of the County
of Kalamazoo was entitled to constitutional protection of free speech. In
notifying the County Prosecutor and State Police of potential wrongdoing of
the County Treasurer, Plaintiff was engaged in protected activity under the
constitution of the United States.
47. The speech was and is a matter of public concern.
48. Defendants in harassing, abusing, disciplining and terminating
the employment of Plaintiff because of her disclosure of actual or potential
wrongdoing caused her to suffer an injury that would likely chill a person of
ordinary firmness from continuing to engage in that activity.
49. The adverse actions against Plaintiff were motivated by
Plaintiff’s exercise of her constitutional rights.
50. The conduct of Defendants described and complained of above
constitutes unreasonable and unconstitutional interference with and
infringement upon Plaintiff’s exercise of her rights of free speech, guaranteed
under the First and Fourteenth Amendments to the United States
Constitution.
51. As the direct consequence and result of the acts of Defendants,
Plaintiff suffered much anxiety and distress, discomfort, embarrassment and
financial loss.
52. The illegal retaliation toward and discharge of Plaintiff by
Defendants was motivated by Plaintiff’s exercise of her First Amendment
rights to criticize a public official.
53. Defendants’ actions were intended to harass and punish Plaintiff
for exercising her constitutional rights, were an oppressive and unlawful
attempt to limit Plaintiff’s rights to continued employment, and failed to give
Plaintiff due process, violating any property interest she had in her
employment, all in violation of the First, Fifth and Fourteenth Amendments
to the United States Constitution and 42 U.S.C. §1983.
54. As the direct consequence and result of the acts of Defendants,
Plaintiff was deprived of her employment, suffered much anxiety, distress,
discomfort and embarrassment, and damage to her reputation.
COUNT II
WRONGFUL TERMINATION IN VIOLATION OF
THE WHISTLEBLOWERS’ PROTECTION ACT
55. Plaintiff re-alleges and incorporates by reference all allegations
in all preceding paragraphs.
56. Plaintiff White was an employee, and Defendant County of
Kalamazoo was her employer, covered by and within the meaning of
Michigan’s Whistleblowers’ Protection Act, Mich. Comp. Laws §15.361 et seq.
57. Plaintiff reported suspected violations of State and Federal laws,
regulations, and/or rules governing the use of public funds.
58. Defendant County of Kalamazoo, by its agent(s), was aware that
Plaintiff reported violations or suspected violations to a public body.
59. Defendants’ actions in retaliating against Plaintiff and
terminating her employment were intentional and in disregard for the rights
of Plaintiff.
60. The retaliatory conduct of Defendants violates Michigan’s
Whistleblowers’ Protection Act. Mich. Comp. Laws §15.362.
61. As a direct and proximate result of the violation of Plaintiff’s
rights as alleged, Plaintiff has suffered irreparable harm, injuries, and
damages, including but not limited to loss of earnings and earning capacity,
past and future lost earnings, and the value of fringe benefits. Plaintiff has
sustained humiliation, outrage, indignity, mental and emotional distress,
embarrassment, anxiety about the future, damage to her good name and
reputation, and loss of the ordinary pleasures of everyday life.
COUNT III
WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY
(“PUBLIC POLICY TORT”)
62. Plaintiff White re-alleges and incorporates by reference each and
every allegation in each and every aforementioned paragraph as if fully set
forth herein.
63. During the course of her employment with Defendant County of
Kalamazoo, Plaintiff refused to acquiesce in activities that she believed to be
potential violations of law, and internally objected to those activities.
64. In particular, Plaintiff attempted to comply with State and
Federal laws, regulations and rules governing the use of public funds, and
asked for guidance from the County Prosecutor regarding the potentially
illegal conduct.
65. The discipline and termination of Plaintiff White was motivated
by her refusal to violate the law and acquiesce in violations of law and for her
internal objections to practices which implicated or could have implicated
illegal compliance.
66. Plaintiff’s termination violates clearly established public policy of
the State of Michigan that an employer may not adversely alter an
employee’s employment when the reason for the alteration was the failure or
refusal to violate a law in the course of employment.
67. As a direct and proximate result of the violation of Plaintiff’s rights
as alleged, Plaintiff has suffered irreparable harm, injuries, and damages,
including but not limited to loss of earnings and earning capacity, past and
future lost earnings, and the value of fringe benefits. Plaintiff has sustained
humiliation, outrage, indignity, mental and emotional distress,
embarrassment, anxiety about the future, damage to her good name and
reputation, and loss of the ordinary pleasures of everyday life.
COUNT IV
VIOLATIONS OF THE OPEN MEETINGS ACT
68. Plaintiff incorporates paragraphs 1 through 67 as though set
forth herein.
69. Defendant Kalamazoo County is subject to Michigan Open
Meetings Act. MCL 15.261 et al.
70. The Open Meetings Act requires decisions of a public body or
board to be done in open session, and public notice must issue.
71. A “public body” under the Act includes a board commission,
committee, subcommittee, authority, or council (MCL 15.262).
72. In order for a board or a committee of the board to meet in a
closed session, a 2/3 roll vote of the members elected or appointed and
serving must vote in an open session to go into closed session, and only for
certain purposes as specified in the Act (MCL 15.267).
73. Minutes of the meeting in which it has been decided by the board
or committee or subcommittee of the board to go into closed session must be
kept (MCL 15.269).
74. Under MCL 15.268, a board or committee or subcommittee of the
board may go into closed session:
(a) To consider the dismissal, suspension, or disciplining of, or to hear
complaints or charges brought against, or to consider a periodic
personnel evaluation of, a public officer, employee, staff member, or
individual agent, if the named person requests a closed hearing. A
person requesting a closed hearing may rescind the request at any
time, in which case the matter at issue shall be considered after the
rescission only in open sessions. (emphasis added)
75. Defendant County violated the Open Meetings Act in that it failed
to give public notice of one or more meetings of the Board; failed to give
notice that the meeting on November 6 would include consideration of the
employment of Plaintiff White as one of its topics and the subject was not on
the Notice or Agenda; went into closed session or sessions on a decision
considering the dismissal of Plaintiff White when she was unaware the
subject of her employment was going to be discussed and was not given the
opportunity to request closed session; and did not vote to go into closed
session pursuant to the requirements of the Open Meetings Act.
76. Defendant County willfully violated the Open Meetings Act
knowing full-well all of the requirements listed above and meeting and
deciding on the fate of Corporate Counsel in closed session.
77. As a result of these violations of the Open Meetings Act, the
rights of members of the public were impaired in the following ways:
i. The members of the public served by the County and
Corporate Counsel were not given a chance to hear the
reasons for the consideration of her dismissal;
ii. The members of the public served by the County and
Corporate Counsel were deprived of offering meaningful
comment and input prior to a decision being made
regarding her dismissal;
iii. The November 6 Open Meeting announcing the
termination of Corporate Counsel was simply a rubber
stamp to the decision made previously by the Commission
and there was no deliberation or time allotted for public
comment.
78. Because the rights of the public were impaired to such a degree,
Plaintiff requests that the decision of the County Commission be rescinded,
that Ms. White be reinstated as Corporate Counsel, and that she be given all
compensation and benefits she should have been receiving prior to the
November 6 meeting.
COUNT V
BREACH OF CONTRACT
79. Plaintiff incorporates by reference paragraphs 1 through 78.
80. Plaintiff White was employed by the County of Kalamazoo
pursuant her Employment Agreement.
81. Defendants’ failure and refusal to abide by the terms of this
contract of employment by summarily firing Plaintiff without giving Plaintiff
White sixty (60) day notice required by the contract, constitutes a breach of
said contract.
82. Defendants’ intentional violation of the Open Meetings Act by not
issuing proper notice, nor allowing Plaintiff to request an open or closed
meeting, continued to breach the contract.
83. All conditions precedent to full performance on the part of
Plaintiff occurred. The contract remains breached.
84. As a direct and proximate result of Defendants’ breach of
contract, Plaintiff White has sustained significant damages including
consequential damages.
RELIEF
WHEREFORE, Plaintiffs request:
(a) Judgment against Defendants in the amount due for lost wages
and other economic and non-economic loss;
(b) Plaintiff’s employment be reinstated with Defendant Kalamazoo
County;
(c) An additional amount of compensation based on the injury to her
reputation.
(d) Award to Plaintiff costs and reasonable attorney fees for all
causes of action;
(e) Award to Plaintiff exemplary and punitive damages; and
(f) Award to Plaintiff such other legal and equitable relief as the
Court deems appropriate, including interest from the date of the Complaint.
Respectfully Submitted,
PINSKY, SMITH, FAYETTE & KENNEDY, LLP
Attorneys for Plaintiff Elizabeth White
Dated: November 13, 2019 By /s/ Katherine Smith Kennedy
Katherine Smith Kennedy(P-54881)
Business Address and Telephone:
146 Monroe Center, NW, Suite 805
Grand Rapids, MI 49503
(616) 451-8496
JURY DEMAND
Plaintiff demands a trial by jury of all issues.
Respectfully Submitted,
PINSKY, SMITH, FAYETTE & KENNEDY, LLP
Attorneys for Plaintiff Elizabeth White
Dated: November 13, 2019 By /s/ Katherine Smith Kennedy
Katherine Smith Kennedy, Esq.
Business Address and Telephone:
146 Monroe Center Street NW, Suite 805
Grand Rapids, MI 49503
(616) 451-8496
