Judge tosses three counts in lawsuit, but two remain
Former township attorney Thomas Esordi claims wrongful firing
A Macomb County judge has dismissed three state claims against Macomb Township and two township officials in a lawsuit by the fired township attorney and human resources director, but one claim remains each in state and federal court.
Circuit Judge James Maceroni last month granted the township’s request to dismiss three of the four state counts alleged by Thomas Esordi against the township, Clerk Kristi Pozzi and former supervisor Janet Dunn for his 2020 firing by the township Board of Trustees.
Maceroni threw out claims of breach of contract, violation of Michigan public policy and retaliation violation of the Whistleblower Protection Act and public policy.
“We are very satisfied with the decisions,” said township Attorney Ben Aloia.
The township did not seek summary judgment on violation of the WPA in which Esordi claims he was fired for reporting suspected fraud and theft by Dunn and blackmail and extortion by other public and union officials.
Aloia said seeking dismissal of the WPA count now would be premature since only Esordi has been deposed so far in the case.
“We felt we could get these three counts dismissed now and the parties are going through discovery,” Aloia said. “We plan to seek dismissal on the final claim after discovery is completed.”
Also, Esordi’s federal claim of violation of due process related to his firing is pending in U.S. District Court.
The allegations in part involve the federal investigation of former township trustee Dino Bucci, who is scheduled to be sentenced to prison Aug. 18 for extortion and theft conspiracies following his indictment on 18 counts for actions in the township as well as in his role as operations manager in the county Department of Public Works.
Esordi had been working secretly with the U.S. Department of Justice in 2016 before the contract was approved. He continued to work with the feds after his pact was approved in January 2017, including receiving a subpoena to testify before a grand jury in 2017, the lawsuit says.
Esordi alleges in the lawsuit Dunn expressed concern to him in October 2019 that the board may try to remove her because she had received money from Bucci.
The lawsuit alleges Pozzi, another township official and union officials had been blackmailing her, that Pozzi and another 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.”
The lawsuit does not further specify the alleged fraud and theft allegedly committed by Dunn.
Esordi was fired Nov. 24, 2020, for “just cause,” as required in his contract, shortly after a new board was elected and after its predecessors deadlocked 3-3 on firing him April 29, 2020, following a Loudermill hearing. Dunn abstained from voting.
Pozzi and Dunn have denied Esordi’s allegations that he was fired for supposedly blowing the whistle on officials, with Dunn calling them “inaccuracies, lies and distortions of the truth.”
Pozzi has said Esordi was fired based on “evidence of the evaluations of the people he worked with,” a report by an attorney “and his inability to work with the board of the whole.”
Dunn said she placed Esordi on administrative leave prior to his ouster by the board based on many issues, particularly his performance evaluation.
In his ruling denying the breach of contract claim, Maceroni says the contract between Esordi and the board was void because the board’s membership changed significantly when the contract was approved and terminated.
“The employment contract is void as it is against public policy since after its approval, it impaired subsequent board member’s ability to remove (Esordi) from his dual-role and appoint a successor,” Maceroni wrote in a 13-page opinion.
The board added trustees Kathy Smith and Charlie Oliver after the contract was approved and before the Nov. 3, 2020 election. Supervisor Frank Viviano, Treasurer Leon Drolet, and Trustees Frank Cusumano Jr. and Peter J. Lucido III were newly elected Nov. 3, 2020. Esordi was fired three weeks later.
Maceroni discarded Esordi’s argument that the township has similar contracts with three other officials, among other arguments.
Regarding the two counts of violation of Michigan public policy and retaliation violation of the Whistleblower Protection Act and public policy, Maceroni says both emanate from the same allegations as the first count, violation of the WPA, so it would be duplicative.
“Plaintiff’s WPA claim is the exclusive remedy for his termination of employment for reporting his employer’s alleged violation of the law,” Maceroni wrote.
The judge adds if Esordi shows that count I, the WPA count, is “not applicable, the Court will entertain a motion to reinstate these claims.”
In March 2021, Esordi sought to move the case to federal court, which accepted only the due process count.
Esordi seeks reinstatement to his position with salary benefits, lost wages, compensatory and exemplary damages, and legal fees.
Bucci was one of more than two dozen people indicted as part of a yearslong federal public corruption investigation centered in Macomb County. The highest level official, former county public works director Anthony Marrocco, is scheduled to face a July trial.
To replace Esordi, the township hired Aloia and Associates along with York, Dolan and Tomlinson law for municipal law and prosecution, and The Kelly Firm for labor law.