Court Rules for City of East Lansing in Case Brought by Workers

Thursday, June 28, 2018, 7:59 am
By: 
Alice Dreger and Ann Nichols

Above: plaintiffs with their attorney Neal Wilensky (l) and City Manager George Lahanas (r)

The State of Michigan Court of Appeals has ruled in favor of the City of East Lansing in a lawsuit brought by nine City workers, dismissing the case.

The workers’ case depended on the claim of “intentional tort”—intentional harm of the workers—in order to be litigated in civil court and not limited to the Workers’ Compensation Agency. Under Michigan Workers’ Compensation law, injured workers can’t sue an employer for money damages unless the workers are able to prove that the injury was not an accident, but deliberately intended and caused by an employer.

The Appeals Court judges decided that such a claim couldn’t possibly be proven based on the facts the East Lansing wastewater treatment plant (WWTP) workers laid out in their pleadings.

Although the Appeals Court decided in favor of the City because there were no facts to support a claim that City employees intentionally caused harm to the plant workers, the Court's decision notes that:

“...It is admittedly stunning that a maintenance supervisor and a plant superintendent would be so uninformed about how to handle the hazardous materials around which they and their employees work. As was the case with the WWTP’s statutory violations involving asbestos containing material, authorities rightly cited and fined East Lansing for not having in place an emergency plan to handle such spills, not informing employees of the spill, and not properly cleaning the spill.”

The City has spent over $200,000 fighting the lawsuit and has had to pay fines associated with violations found by the Michigan Department of Environmental Quality (DEQ) and the Michigan Occupational Safety and Health Administration (MIOSHA). A number of supervisors in the chain of command for the wastewater treatment plant were either fired or left the City’s employment as the revelations of the problems unfolded. The City was represented in the case by external legal counsel, Thomas Fleury of Keller Thoma, a specialist in employment law.

The case arose out of bungled management of a mercury spill at East Lansing’s wastewater treatment plant as well as a seven-year span passing between when the City was advised it had exposed friable (dangerous) asbestos at the plant and the time the City finally moved to protect workers as required by health and environmental regulations.

ELi previously reported that the plaintiffs in this case faced an uphill battle in trying to make this legal claim of intent to harm. Michigan law sets a very high bar for workers who seek to sue employers in this way. A lower court had allowed the case to go forward.

ELi also previously reported that City Manager George Lahanas stated that “none of the employees who are plaintiffs in this lawsuit have suffered any wage loss or needed medical care as a result of a work-related injury or illness,” but that the plaintiffs’ attorney, Neal Wilensky denounced Lahanas’s claim as patently untrue.

Wilensky told ELi, “The City paid multiple workers that are part of the suit medical benefits for breathing complaints related to the exposure. Claims were filed in workers’ comp – they were filed, disputed, and then paid, for breathing complaints related to exposure including asbestos and mercury.”

In our special series, “The Mercurial Trail,” ELi traced out what happened with the mercury spill, showing that the City had failed to train workers in hazard management and hazard communication as required; that the spilled mercury was spread in attempts to clean it up with shop vacs and duct tape; that four months elapsed between the spill and when it was reported to the Health Department as required; and that the “cleaned-up” mercury ended up in floor drains, dumpsters, and waste water.

We also reported that officials found the City to be out of compliance with basic health and environmental regulations; that contaminated equipment was used at the Hannah Community Center to blow out heating vents; that Council Members were misinformed by City Manager George Lahanas about what had happened in the chain of events; and that mercury was probably ultimately landfilled as a result of the mismanagement.

 

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