Estate of Housey v. Macomb Cnty.

ESTATE OF DONALD J. HOUSEY, through personal representative, MITCHELL J. HOUSEY, Plaintiff,

v. MACOMB COUNTY, a municipal corporation, MARK S. SWITALSKI,in his individual and official capacities, and KATHRYN GEORGE, in her individual andofficial capacities, Defendants.

Case No. 10-11445

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: May 15, 2012

HON. AVERN COHN

MEMORANDUM AND ORDER

GRANTING GEORGE'S MOTION FOR SUMMARY JUDGMENT (DOC. 40)

GRANTING SWITALSKI'S MOTION FOR SUMMARY JUDGMENT (DOC. 43)

DISMISSING MACOMB COUNTY AS A PARTY TO THE CASE

DISMISSING MACOMB COUNTY'S MOTION FOR SUMMARY JUDGMENT AS

MOOT (DOC. 42)

I. Introduction

This is a wrongful discharge case. Plaintiff Donald Housey (Housey) claims he was terminated from his position as the Macomb County probate court register¹ in retaliation for reporting misconduct by a judge of that court. Housey says he reported improprieties by Kathryn George (George), a Macomb County probate judge, to the State Court Administrative Office (SCAO). Mark Switalski (Switalski), chief judge of the Macomb County circuit and probate courts, ultimately terminated Housey. Thecomplaint is in four (4) counts;² (I) Violation of 42 U.S.C. §1983 Due Process; (II) Wrongful Discharge- Breach of Contract and Legitimate Expectations; (III) Violation of Michigan's Whistleblower Protection Act (WPA) M.C.L. §15.361 et seq; and (IV) Violation of 42 U.S.C. §1983 Free Speech. There are three defendants: George, Switalski, and Macomb County.³ George and Switalski are sued in both their individual and official capacities.

Now before the Court are three (3) motions: George's Motion for Summary Judgment (Doc. 40), Switalski's Motion for Summary Judgment (Doc. 43), and Macomb County's Motion for Summary Judgment (Doc. 42). For the reasons that follow, George's Motion for Summary Judgment (Doc. 40) is GRANTED; Switalski's Motion for Summary Judgment (Doc. 43) is GRANTED; Macomb County is DISMISSED as an improper party to the case; Macomb County's Motion for Summary Judgment (Doc. 42) is DISMISSED as moot. This case is DISMISSED.

II. Background⁴

A. Material Facts Not in Dispute

1.

Housey served as the register for the Macomb County probate court from November 2002 until his termination in January 2010. Housey first joined the court in 1989 as a probate attorney/referee. Pamela Gilbert O'Sullivan (O'Sullivan) was the chief judge in 2002; she appointed Housey as the probate court register. O'Sullivan described Housey's service during her tenure as chief judge as "excellent."

2.

In 2002, Housey ran in the primary election for the office of probate judge against five (5) opponents, including George. Housey did not garner enough votes to run in the general election. George won the primary and subsequently won the general election. George took the bench in January of 2003. Tension between Housey and George began shortly thereafter. The relationship soured permanently when Housey began to question George's appointment of a conservator group called ADDMS.⁵

3.

O'Sullivan enacted a policy in 2005 requiring rotational assignments from an approved list of guardians/conservators. Nevertheless, George appointed conservators from a personal list, which included ADDMS. Beginning in 2004, Housey sent in excess of twenty (20) reports to the State Court Administrative Office (SCAO) regarding Georgeand ADDMS, fifteen (15) of which were in 2007. Housey reported that ADDMS overbilled estates and mismanaged the affairs of the clients they represented. SCAO did not take any action on Housey's verbal or written reports.

4.

In 2005, SCAO commissioned the Whall Group (Whall) to complete a financial and forensic audit of the probate court's procedures and records. After its investigation, Whall issued a report outlining significant problems. Whall found procedures in conflict with statute; excessive and inaccurate billing of estates; lack of effective oversight of disbursements and conservator accountings; and mismanagement of real estate transactions. Whall made a comprehensive list of recommendations designed to improve procedure and oversight. The report also noted that personal animosity between the judges created a feeling of "awkwardness" in the court. Additionally, the report raised questions of ADDMS's practices as conservator. In response, O'Sullivan stopped assigning ADDMS as conservator to cases on her docket.

5.

George assumed the office of chief judge in January of 2008. George implemented changes that included reassignment of offices, restricting keys for the building and file cabinets, and requiring court employees to pass through security screening. George restricted the use of cell phones, use of court telephones, and forbade eating at a desk in view of the public. George directed Housey to complete a written daily report on his activities. During her tenure as chief judge, George issued written memoranda to Housey expressing her disapproval with his practice of whistling in court and forbade bringing donuts for some but not all court employees. Georgerequired Housey to obtain approval before delegating any of his assigned duties or attending professional development trainings.

6.

In January of 2008, SCAO commissioned Whall to complete another audit of the probate court. Whall reported low employee morale, that court procedure was not uniformly applied, and that the personal animosity between George and O'Sullivan rendered the court dysfunctional. Whall found that court employees manipulated the system of random judge assignment to cases. Whall noted that an inordinate number of cases that included a recommendation for ADDMS in the initial petition were sent to George. Whall's report speculated that clerks would set aside a file with an ADDMS recommendation until George's name came up as the assigned judge, thereby subverting the random judge assignment process.

7.

Whall found that sixteen percent (16%) of the audited files contained the appearance of financial mismanagement, up from ten percent (10%) in 2005. Whall found noncompliance with court rules and procedure in seventy-five percent (75%) of audited cases. Additionally, the 2008 Whall report found that a substantial number of cases handled by ADDMS lacked adequate accounting for assets and income.

8.

In May of 2008, George placed Housey on administrative leave pending an investigation of the issues identified by the 2008 Whall report, specifically themanipulation of the random judge assignment system. A Loudermill⁶ hearing was scheduled and held for Housey.⁷

9.

The Supreme Court reacted to the 2008 Whall report by removing George as chief judge and appointing Kenneth Sanborn (Sanborn). Sanborn served as a Macomb County probate judge and circuit court judge from 1972-1990. The day after his appointment, Sanborn rehired Housey as probate court register. Shortly thereafter, the Macomb County corporation counsel closed the file on disciplinary proceedings initiated by George against Housey.

10.

The Michigan Attorney General conducted an investigation into matters identified by the 2008 Whall report, in particular, the practices of ADDMS. The Attorney General concluded the probate court "is struggling to operate effectively and efficiently under the weight of discord with the court."⁸

11.

In November 2009, the Michigan Supreme Court appointed Switalski as chief judge of the Macomb County circuit and probate courts effective January 1, 2010. In preparation, Switalski reviewed the findings of the 2008 Whall report. Switalski met with Sanborn, members of SCAO, attorneys who practiced before the probate court, Georgeand O'Sullivan. He also met with Housey on four (4) occasions. During one of his meetings with Switalski, Housey disclosed that he sent letters to SCAO and cooperated with the JTC investigation.

12.

In November of 2009, the JTC issued a subpoena to Housey in his capacity as probate court register, for seventeen (17) probate court files. Housey contacted Switalski for guidance; Switalski ultimately assigned the task of responding to his secretary. As part of the JTC investigation, Housey met with a JTC investigator confidentially on three (3) occasions.

13.

Switalski terminated Housey on January 15, 2010. At the time, Switalski declined to outline the reasons for his decision. He did comment that it was a "coach's decision." Housey requested a Loudermill hearing pursuant to his understanding of his rights as outlined by the 2001/2004 personnel manuals. Switalski declined his request on the basis that Housey was an at-will employee under the terms of the 2009 personnel manual.

14.

The 2001/2004 personnel manuals⁹ established a just-cause requirement for termination and provided for a Loudermill hearing. Additionally, the manuals stated in relevant part "[t]he manual shall not be construed as creating a contract between the County and any of its employees." Moreover, county employees "cannot rely upon custom or prior practice" with regard to County policy and procedure. Finally, themanual provided "personnel policies...may be added to, expanded, reduced, deleted, or otherwise modified by the County and such personnel policy modifications are solely within the discretion of the County Board of Commissioners."

15.

The county and probate court adopted a new personnel manual in 2009. The manual contained many of the same provisions as the 2001 and 2004 manuals. However, it removed the just-cause requirement and declared that all non-union personnel were at-will employees subject to termination at any time for any reason. The manual included a provision that continued employment with the county acknowledged the at-will nature of his/her position.

16.

In 2001 and 2004, the manual was distributed to each employee and required a signed acknowledgement of receipt. Housey received and signed for the 2001 and 2004 manuals. The 2009 manual, however, was not physically distributed to employees. It was posted on the county's intranet.

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