Judge Declines to Dismiss Workers’ Suit Against City

Wednesday, October 12, 2016, 5:08 pm
By: 
Alice Dreger

Neal Wilensky, Kim Hopkins, Ryan Ebbinghaus, Jose Mireles, Allesha Morris, and Troy Williams (shown left to right), outside the courthouse after today’s hearing.

The lawyer representing the City of East Lansing in a lawsuit brought by City workers tried to convince a judge to entirely dismiss the suit today. But the judge in the case denied the request, saying there appears to be evidence the City should have done more to protect workers at its wastewater treatment plant.

Last year ELI broke the story that nine workers at East Lansing’s wastewater treatment plant are suing the City, alleging that they “were intentionally and unnecessarily exposed to mercury and asbestos.”

A 2013 spill of mercury at the plant went unreported to the appropriate authorities for four months, after being “cleaned up” by being washed down the plant’s drains, collected with duct tape, and vacuumed up with ordinary shop vacs later used to blow out vents at the Hannah Community Center. Several City workers were exposed to mercury in the process.

The plant also had numerous locations containing friable asbestos which a 2007 consultants’ report by Fibertec specifically identified but which the City did not appropriately manage until 2014.

The plaintiffs/workers have faced high legal hurdles in this case, as we previously reported. Workers’ Compensation law generally protects employers for being sued in exchange for providing employees monetary assistance for harms incurred in the workplace. Moreover, governmental units working in governmental activities usually enjoy extra legal protection from lawsuits brought by employees.

Representing the City today, attorney Thomas Fleury told the judge he should dismiss the case outright because the City has immunity in such cases. He said the three individual former City supervisors also being sued should enjoy the same immunity because they been working for the City at the time.

At first the judge seemed to agree with Fleury, saying “it’s ugly, and I don’t really like it,” but it appeared the City could have endangered the workers’ safety and still be immune under the applicable law.

Fleury noted that the immunity would not apply if the City had shown to have engaged in “subjective malice”—intention to harm the workers. But, Fleury said, the plaintiffs could not show subjective malice. Fleury also said that if the workers showed health problems in the future, they would be compensated under workers’ comp, and that is the total of what they are legally owed. He also argued that the workers had shown no evidence of having actually been harmed by exposure to mercury and asbestos.

But attorney Neal Wilensky, representing the workers, disagreed, saying some of the plaintiffs had had breathing problems and some had shown elevated mercury levels in their bodies. He presented medical reports to support his claims. He also said that some workers who had brought up concerns in 2014 had been threatened by supervisor Wayne Beede that they might lose their jobs, and said some workers had experienced emotional harm from all of what had occurred.

Wilensky went on to argue that the seven years of non-action on the part of the City in response to the 2007 asbestos report could be interpreted as a kind of intention to harm. Wilensky noted that the 2007 report had recommended notifying workers of the dangers, providing safety training, clearly marking with warning signs the dangerous areas, and abating friable asbestos, none of which the City did until workers raised an alarm in 2014. He also referred to evidence that the plant supervisor during the mercury spill, Catherine Garnham, had been told of the spill but had failed to investigate.

Wilensky called the behaviors of City supervisors in these instances “egregious” and “deliberate.”

Judge Clinton Canady essentially agreed with Wilensky in his ruling that there might be evidence of intent to harm. He noted that the City had had the information about active asbestos danger since 2007 but did not follow the reports’ recommendations to warn workers. Canady said this “could be interpreted to be malice.”

Canady also said that it was well known by that time that someone “continuously and prolongingly” exposed to asbestos “is likely to get sick,” although asbestos-induced illnesses (including lung cancer) may not show up for years afterwards. Canady called the asbestos at the plant “potentially a major health hazard.”

Canady also said that given that the plant had outside contractors coming in, along with members of the public for tours, there probably should have been consideration of outsiders’ health and safety as well. He suggested this might also mean the building counted as “public,” which could have implications for the City’s attempts to claim governmental immunity for the plant.

Ultimately the judge told the courtroom there was a “known hazardous condition” because of the asbestos at the plant and the seven-year gap between the Fibertec report and action by the City. He said some of the asbestos was falling off the ceiling and workers were being asked to clean it up in ways that could be expected to potentially harm them. (According to testimony in the lawsuit, the workers were not issued personal protective equipment when told to sweep up the loose asbestos fibers.) Canady said there had been no warning and no attempts to educate the employees about the danger, claims the City has not disputed in the case.

Canady told the court it appeared that the City had knowledge it willfully disregarded for seven years. Canady said he thought intentional tort “could be established by the City’s failure to look out for the welfare of employees by advising them” of the asbestos danger. He also made mention of the exposure to mercury as a result of the spill. He also questioned, given that outsiders came into the building to do contract work and to tour, whether the City could really claim governmental immunity in this case.

Asked for his take, Wilensky told me he thought the judge’s ruling was exactly right. He said there had been “a substantial and significant concealment” of health dangers by the City’s supervisors in this case. “East Lansing should be better than this,” he said. “It’s totally shameful that you would treat your employees this way.” Fleury was not available afterwards for comment.

 

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