Macomb Township attorneys argue for dismissal of fired attorney’s whistleblower lawsuit – Macomb Daily
Attorneys for Macomb Township and a current township official argued Monday for a judge to dismiss the whistleblower claim in a lawsuit filed by the fired township attorney/human resources director.
Attorneys representing the township and Clerk Kristi Pozzi lobbied Macomb County Circuit Court Judge James Maceroni in Mount Clemens to throw out the claims by Thomas Esordi because he was fired for a legitimate reason, and prior actions related to his employment had no material impact on him. Janet Dunn, former supervisor who is also a defendant, also has asked for a dismissal although her attorney, John Gilliam, who appeared by Zoom did not orally argue in court due to a time restraint.
Maceroni will issue a written opinion at a later date.
Township attorney Ben Aloia said Esordi was fired in November 2020 because Supervisor Frank Viviano was concerned his combined role as township attorney and human resources director presented an inherent conflict of interest, not as retaliation for revealing sensitive information about Dunn and other officials as Esordi has asserted.
“He (Viviano) perceived possible conflicts in the dual role because employees may be deterred from reaching out to human resources about deeply sensitive topics including claims of harassment that would result in grievances, and the human resources director would be the same person charged with defending the employee. … Do we have to show an actual conflict? No. We provided case law that a possible conflict is a legitimate reason,” he said.
Esordi’s attorney, Mark Gronzotto, retorted the conflict could have been overcome.
Macomb Township Supervisor Frank Viviano and Clerk Kristi Pozzi listen to arguments Monday in Macomb County Circuit Court in Mount Clemens.JAMESON COOK — THE MACOMB DAILY
“If there is a conflict between between those two jobs, why does Mr. Esordi lose both jobs?” Gronzotto said in court. “That’s the initial question a jury is going to have to decide when considering this case.”
Gonzotto said Viviano’s explanation was the “pretext” for the firing.
The Whistleblower Protection Act lawsuit claims Esordi was actually fired as retaliation for his revelation in January 2020 that Dunn told to him in October 2019 she was concerned the board may try to remove her because she had received money from the late Dino Bucci, who was indicted by a federal grand jury, pleaded guilty to charges and died before he was sentenced.
The lawsuit alleges Pozzi, another township official and union officials had been blackmailing Dunn; that Pozzi and other township officials used their knowledge of Dunn receiving the money to “coerce and force her to agree to certain matters and/certain votes against her will.”
Gronzotto said other retaliatory actions were taken against his client.
Aloia and Pozzi’s attorney, Lauri Stewart, not only deny the claims but turned the tables on Esordi at the hearing by accusing him of holding on to the information about Dunn for three months then using it as protection against negative performance evaluations of him by employees that he learned about a day before he wrote a memo to the board about Dunn.
“You know you’re in trouble,” Stewart said of Esordi. “You’re sitting on this information and before the action (potential firing) is actually completed, you put this protected activity out there that you have been sitting on for a rainy day to try to use it to try to insert yourself.”
Dunn says she placed Esordi on paid administrative leave due to his negative performance evaluations submitted by employees, Aloia said. In February 2020, the board voted to fire him, but the move was postponed, and Esordi remained on paid leave.
Aloia said the fact Esordi was compensated while on leave shows “it’s not disciplinary in nature because it anticipates the possibility that the allegations may be unsubstantiated and no disciplinary action may result.”
Aloia said Esordi attempted to obtain video of the Board of Trustees room where employees dropped their evaluation forms into a box.
In April 2020, the board deadlocked 3-3 to fire him, following a Loudermill hearing, a due process session provided to public employees in certain instances before they can be removed from their position.
Janet DunnMACOMB DAILY FILE PHOTO
He was fired in November 2020 after five of the seven board members were replaced as a result of the October 2020 election.
Esordi claims in the lawsuit he had been working secretly with the U.S. Department of Justice in 2016 and received a subpeona to testify before a grand jury in 2017, the lawsuit says.
Aloia threw skepticism on that claim, noting the only substantiation of it comes from an affidavit from a former Department of Justice employee who is now a defense attorney.
Stewart noted to the judge that Esordi’s lawsuit was filed in an election year; Pozzi was sued but other board members were not.
“Somehow she ends up as a defendant in his lawsuit,” Stewart said. “It is not a coincidence that this lawsuit was filed against her in an election year when Mr. Esordi and Mr. Gonzotto … were actively supporting her opponent.”
In December 2021, Maceroni granted the township’s request to dismiss the three other claims in the lawsuit – breach of contract, violation of Michigan public policy and one of two claims under the Whistleblower Protection Act. The dismissals are on appeal.
Esordi also filed a federal procedural due-process lawsuit against the same three defendants that was dismissed in January by a U.S. District Judge Sean Cox.
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