MacDonald v. City of Detroit

DAVID MACDONALD, Plaintiff, v. CITY OF DETROIT, DETROIT BUILDING AUTHORITY,and DETROIT LAND BANK AUTHORITY, Defendants.

Case No. 19-12183

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

February 1, 2021

OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION TO FILE AN AMENDED COMPLAINT

I. INTRODUCTION

Plaintiff David MacDonald sues Defendants City of Detroit (the "City"), Detroit Building Authority ("DBA"), and Detroit Land Bank Authority ("DLBA") alleging constitutional violations stemming from Plaintiff's involvement in the Detroit Demolition Program ("DDP" or the "demolition program"). Before the court are three motions for summary judgment, one filed by each Defendant, and a motion by Plaintiff to amend his complaint to reassert a dismissed equal protection claim. The motions have been fully briefed, and the court concludes that a hearing is not necessary. See E.D. Mich. 7.1(f)(2). For the reasons stated below, the court will grant Defendants' motions for summary judgment and will deny Plaintiff's motion to file an amended complaint.

II. BACKGROUND

A. Factual History

In 2014, Detroit Mayor Mike Duggan initiated the demolition program to help combat blight within the City by demolishing abandoned houses. (ECF No. 17, PageID.161.) The demolition program is administered by the DLBA, which is overseen by the DBA. (Id.) The program relies on demolition contractors and requires contractors to test and remediate homes for asbestos prior to demolition. (Id. at 162.)

Once a contract has been awarded to a demolition contractor, either the City or the DLBA will issue a Notice to Proceed, and the specific house is scheduled for asbestos abatement. (Id.) A cloud-based application created by Salesforce tracks the asbestos abatement process. (Id.) Every property targeted by the demolition program has a unique Salesforce webpage, and all parties involved in the demolition process can access the Salesforce website for each individual house. (Id.)

After the abatement sub-contractor completes its work, the house is scheduled for a "post abatement verification" inspection. (Id.) When the inspector completes the post abatement inspection, he uploads his report to the Salesforce webpage. (Id.) If the inspector's report indicates that the asbestos has been totally abated the demolition contractor may schedule a demolition date for the house, also referred to as a "planned knock date." (Id. at 163.) The demolition contractor must enter the date of the actual demolition into Salesforce, along with the date on which the remnants are hauled away, and the date on which the lot is backfilled. (Id. at 164) A final inspection occurs after the grading to determine whether the demolition was properly completed. (Id.)

In August 2017, Plaintiff began working for Den-Man contractors, a demolition contractor who often completed City residential demolition projects. (Id. at 164-65.) While employed at Den-Man, Plaintiff "was critical" of another contractor, BBEK Environmental and its owner, Kevin Woods, for their handling of asbestos abatement work for the program. Specifically, Plaintiff states that he criticized the DBA's reliance on Woods's advice and alleged that Woods was gaining a monopoly in the abatement work. (ECF No. 61-3, PageID.1759.) Woods has since been banned from the demolition program for falsifying Asbestos Clearance Reports and is currently being prosecuted by the Michigan Department of Environmental Quality.

Plaintiff says he first voiced his concerns about BBEK Environmental to Defendants in "June or July 2017" and that he continued to make such complaints at contractor meetings almost weekly between January or February 2018 through his termination in November 2018. (Id. at 1760, 62.) But during their depositions, none of the DBA employees who Plaintiff allegedly complained to, specifically remembered Plaintiff's complaints about Woods at the weekly contractor's meetings. (Id. at 1782, 1789-90, 1796, 1800) One DBA employee, Thomas Fett, who was present at the meetings, stated that "I actually thought that [Plaintiff and Woods] were kind of tight." (Id. at 1800.) While Plaintiff states that most of his complaints about Woods were verbal, he was able to produce two, undated text messages he sent to DBA employees complaining about Woods. (ECF No. 73-5, PageID.2858 (informing Fett that Woods had chosen to work on abatement projects in Flint and Monroe, Michigan that week because he wasn't being paid fast enough by the DBA); Id. at 2861 (warning DBA employee Tim Palazzolo that "Kevin [Woods] is Bus driving the shit out of you with Tammy Daniels" (ahigh ranking DBA executive) by providing Daniels with "two page justification[s]" defending change orders that Woods sought).)

On March 5, 2018, Den-Man hired Renee Alter as an administrative assistant. She was eventually tasked with scheduling demolition work for Den-Man. As Den-Man's demolition project manager, Plaintiff stated that he directly co-supervised Alter. (ECF No. 61-3, PageID.1757.) Several months later, Den-Man also hired Dennis Kolorov to manage backfilling operations. (ECF No. 17, PageID.166.) Shortly thereafter, Plaintiff began looking for other employment. (Id.) Plaintiff asserts that much of his responsibilities were transitioned to Alter on September 10, 2018, but also alleges that he continued to manage backfilling operations for Den-Man as of September 17, 2018. (ECF No. 17, PageID.166-68.)

Documents produced during discovery show that BBEK Environmental sent Plaintiff an email on August 30th, 2018 with an attached spreadsheet indicating the abatement status of various houses set to be demolished by Den-Man (ECF No. 63-3, PageID.2097-100.) The spreadsheet listed 14444 Flanders as "on hold... DO NOT WRECK." (Id. at 2100.) On September 10, 2018, Alter texted a list of houses scheduled to be demolished that week to Plaintiff, which included a house located at 14444 Flanders. (ECF No. 17-2, PageID.187.) The house at 14444 Flanders contained unabated asbestos. (ECF No. 17, PageID.167.) According to Plaintiff, had Alter entered the address into the Salesforce website pursuant to the City's policy, Salesforce would not have allowed a demolition date for 14444 Flanders to be scheduled. (Id.) However, the property was not entered into Salesforce prior to demolition, and 14444 Flanderswas demolished on September 13, 2018. (Id. at 168.) Plaintiff asserts that he had no involvement in the decision to demolish 14444 Flanders. (Id.)

Approximately one hour after the demolition, Alter informed Plaintiff that 14444 Flanders had not yet been abated for asbestos before demolition. Plaintiff "immediately" advised David Holman of Den-Man that the property had not been properly abated. (Id.) Holman reported the incident to the DBA in an email dated October 26, 2018. The email reads as follows:

I regret to inform you that the 1444[4] Flanders [m]ay have been wrecked and completed without removal of asbestos.

David Macdonald [sic] who was in charge of my demolition operation and scheduling demolished this house on 9-13-18. His last day of work was 9-14-18. I have no knowledge of any abatement work that was done prior to demolition.

I was unaware that this job was scheduled or completed until after [D]ave [M]c[D]onald had left.

(ECF No. 17-5, PageID.233.)

On October 30, 2018, Fett prepared an initial factfinding report for the DBA on the Flanders demolition. (See ECF No. 17-6, PageID.234.) The report found that Plaintiff had been informed of the property's status by BBEK Environmental prior to its improper demolition, and it cited Holman's email laying the blame for the improper demolition at Plaintiff's feet because "[Plaintiff] was in charge of the demolition," (Id. at 237-38.) The report expressly stated that "[d]ue to the severity of what the facts seem to indicate, I did not contact [Plaintiff]" as part of the preliminary investigation. (Id. at 238.)

Plaintiff began working for another contractor, Smalley Construction, on September 17, 2018. In response to the October 26 email from Holman, the Deputy Director of the DBA, Timothy Palazzolo, issued a stop-work order to SmalleyConstruction, Plaintiff's new employer. (ECF No. 17-7, PageID.240). Attached to the stop-work order was a letter dated November 6, 2018, from the Director and Health Officer of the City's Health Department, Joneigh S. Khaldun. In relevant part, the letter stated:

It has come to my attention that a home located at 14444 Flanders in the City of Detroit was demolished without proper environmental abatement. I am [sic] receipt of documentation indicating that Mr. David MacDonald—then employed by Den-Man construction—either ignored or overlooked explicit instructions from an abatement contractor that stated the following in regards to 1444 Flanders: "DO NOT WRECK" and "bad survey."

. . .

Accordingly, pursuant to my authority to issue "rules and polices necessary for enforcement" of any laws pertaining to "public health and safety" (see Detroit City code 24-1-1.2), I am hereby declaring that it is the policy of the City of Detroit Health Department that no demolition within the City limits shall be conducted by any company, firm, or LLC that employs Mr. David MacDonald in a demolition-related capacity. This policy is effective immediately, and shall remain in effect until rescinded by me.

(ECF No. 17-7, PageID.253.)

The letter was sent to all contractors involved in demolition work in the DBA's program. (ECF No. 17, PageID.169.)

Dr. Khaldun was not deposed by the parties as part of discovery. Plaintiff states that because Khaldun is now serving as the State of Michigan's Chief Medical Officer, directing the state's Covid-19 response, he respected her office's request "that she not be deposed at this time." (ECF No. 70, PageID.2442.) Consequently, the record does not contain a firsthand account of what evidence was considered as part of her...