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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA ELY,
Case No.:
Plaintiff,
Honorable
v.
DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7,
TODD THIEKEN, and JEFFREY BARTOLD
in their official and individual capacity,
Defendants.
/
MILLER COHEN P.L.C.
Robert D. Fetter (P68816)
Attorney for Plaintiff
600 W. Lafayette Blvd., 4th Floor
Detroit, MI 48226
(313) 964-4454 Phone
(313) 964-4490 Fax
rfetter@millercohen.com
/
COMPLAINT AND DEMAND FOR TRIAL BY JURY
There is no other civil action pending in
this Honorable Court or any other
Court arising out of the same
transaction and occurrence.
NOW COMES Plaintiff, THERESA ELY, by and through her attorneys,
MILLER COHEN P.L.C., and for her Complaint against Defendants, Dearborn

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Heights School District No. 7, Todd Thieken, and Jeffrey Bartold, and states the
following:
INTRODUCTION
1.

Plaintiff Theresa Ely is an employee at Dearborn Heights School District

No. 7. She is a part-time custodian. She is the third generation of her family to work
for Dearborn Heights School District No. 7; both her father and grandfather were
employed by the District.
PARTIES
2.

Plaintiff Theresa Ely is an individual residing in the jurisdiction of the

Eastern District of Michigan, and within the County of Wayne specifically.

3.

The Dearborn Heights School District No. 7 is public body which is the

employer of Plaintiff Ely. Dearborn Heights School District No. 7 operates within the
County of Wayne.
4.

Defendant Jeffrey Bartold was the Superintendent of Schools from the

beginning of the relevant facts to this situation to July 1, 2014. The claims against
Bartold are in both the individual and official capacities, as he was the lead supervisory
person responsible for violation of Plaintiffs First Amendment rights during his
employment. Bartold is not immune from such claims because Bartold violated
Plaintiffs clearly expressed and established constitutional rights.

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Defendant Todd Thieken is the Superintendent of Schools from July 1,

2014 to present. The claims against Thieken are in both the individual and official
capacities, as he was the lead supervisory person responsible for violation of Plaintiffs
First Amendment rights during his employment. Thieken is not immune from such
claims because Thieken violated Plaintiffs clearly expressed and established
constitutional rights.
JURISDICITON AND VENUE
6.

This Court has jurisdiction pursuant to 28 U.S.C. 1331.

7.

This Court is the proper venue pursuant to 28 U.S.C. 1391(b).

GENERAL ALLEGATIONS

8.

Plaintiff Ely was a substitute custodian since 2009. In the summer

months of 2011 she worked as a custodian on a regular basis at Annapolis High

School, a school within Dearborn Heights School District No. 7. She was trained in the
process of removing the wax on the floors and recoating the floors with fresh wax. Her
trainer, lead custodian Dawn Simpson, identified the tile in the building that contained
asbestos. She was informed that the wax on those tiles should only be removed with a
hydroforce remover, which used water and scrubbers rather than abrasive sand paper.
That year, the wax was removed in the building consistent with this instruction.

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Ms. Ely was a substitute custodian through the 2011-2012 school year.

Again, in the summer months of 2012, she began working more regularly at Annapolis
High School. She again was tasked with assisting in the recoating of the floor wax.
10.

When Ms. Ely began working in the summer of 2012, the District was

behind its schedule in recoating the floor wax. The school district instructed the
custodians to sand the asbestos tiles rather than using the hydroforce in order to
complete the task within the allotted time frame. The custodians began working on the
rooms on the second level of the school. The rooms were cleared of all furniture and
desks. Ms. Ely noticed that many of the asbestos tiles were cracked or had exposed
edges due to missing pieces. In other areas, the wax was worn down to the tile due to
furniture use.
11.

Another custodian, Rob Smith began sanding the asbestos tiles as

instructed. When Ms. Ely walked toward the work area, she noticed a fine white dust
cloud in the stair well leading from the first floor to the second floor. This fine white
dust coated the stairs and the student desks stacked near the bottom of the stairs. Once
on the second floor, the air was like a white haze enveloping the entire hallway.
12.

Ms. Ely recalled her training from the previous year and identified the

tiles as the asbestos-containing tiles. She questioned Ms. Simpson as to whether

sanding these tiles was appropriate because last year Ms. Simpson told her that

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hydroforce was necessary on the asbestos tiles. Ms. Simpson told her sanding the
floors should be fine.
13.

Ms. Ely and Ms. Simpson then called their supervisor, John Nichol, to

make sure that sanding the asbestos tiles was appropriate. He told them to continue
sanding the asbestos tile and it should be fine.
14.

Ms. Ely and her coworkers were not given any personal protection

equipment while they were sanding the asbestos tiles. Her and her coworkers mouths
would be full of the gritty dust. They would use extra t-shirts to cover their mouths and
wipe their eyes and face with wet towels to remove the dust from their eyes and
mouths.
15.

Ms. Ely came home after work covered in the dust from sanding the

asbestos tiles. Her father, who works for the District, asked her how she got so dusty.
She told him that they were sanding the asbestos tiles upstairs at Annapolis. In
disbelief, he asked her to show him. When he came to the school and saw that they
were in fact sanding asbestos tiles, he was shocked. He said that he would report it to
Mr. Nichol. Ms. Elys father reported it to Mr. Nichol that same day. Mr. Nichol
informed him that it was fine. Ms. Elys father vigorously objected to the practice but
Mr. Nichol insisted that the practice was fine.
16.

A few days later, during the sanding operation, two plant engineers were

in the area to work on unrelated repairs. Ms. Ely, still concerned about the possible
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exposure asked them based on their experience whether sanding the asbestos tiles was
appropriate. After viewing the areas that were sanded, the plant engineers were
shocked and told Ms. Ely that they were going to immediately report this to John
Nichol. Ms. Ely informed the plant engineers that she had already notified Mr. Nichol.
One of engineers indicated that he is not working in that area because it was unsafe.
17.

Approximately ten days later, after the custodians were finished sanding

the upstairs, they began sanding the first floor. Ms. Simpson informed Ms. Ely that Mr.
Nichol requested a sample of the dust and to only use the hydroforce on the asbestos
tiles at any remaining schools just to be safe.
18.

In September 2012, Ms. Simpson informed Ms. Ely that the results of the

testing of the collected dust came back negative for asbestos.

20.

In January 2013, Ms. Ely learned that an employee at Annapolis had died

of mesothelioma. The family of the deceased former employee reported that the
District had sanded the asbestos tiles for years. Ms. Ely became more concerned about
the possible exposure to herself and others during the summer. She recalled that
students where in summer school on the first floor while they were sanding the
asbestos tiles on the second floor. She recalled that students were writing messages in
the dust near the stair well while they were sanding the asbestos tiles. Many other
employees were in the building at the time. Also, parents and children of the
community were present at the building throughout the summer to participate in the
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federally funded lunch program. At this time, she became very concerned for the
health consequences of sanding asbestos tiles for herself, her coworkers, the students
and the public.
20.

Ms. Ely recalled that in July 2011, she transferred to Madison Elementary

School to assist in the cleanup at that school. Another custodian had performed dry
sanding of the asbestos-containing tiles. The school was covered in the same white
dust from sanding the asbestos tiles at that school. Ms. Ely was tasked with cleaning
the white dust in the school. The District runs a summer child care program at Madison
Elementary School with children 3 years of age to 10 years of age at Madison
Elementary School. The children were in the building while the District dry sanded
the asbestos-containing tiles.
21.

In April 2013, Ms. Ely was given a copy of the report on the sampling of

the asbestos from D & D Consulting. On its face, this report was suspicious. The report
was not signed by the Asbestos Inspector and was not dated. Also, the reports
discussed the difficulty in collecting a sample because the building was unsafe due to
the fire damage during the inspection. (Exhibit 1) There was no fire damage at
Annapolis High School at this time. The report often refers to the inspection in the
home. (Exhibit 1, pgs. 2-3) The school is obviously not a home. Moreover, the
report describes the efforts of the Asbestos Inspector collecting samples. The sample
was collected by a custodian, not any Asbestos Inspector.
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Ms. Ely later discovered that the Asbestos Inspector denies performing

any such report for Annapolis High School. The report was fraudulently prepared by
representatives of the District. The report alleges that D&D Consulting Asbestos
Inspector Don Clayton performed the testing and reporting. However, Mr. Clayton is
retired and has not performed this type of work since 2007. At some time prior to
2007, Mr. Clayton did perform some testing for Annapolis High School. He did not
participate in this report in any way. Mr. Clayton suspects that the District used a copy
of one of his old sampling reports and altered it. The document in electronic format
shows that this was the case. The document shows that a district representative created
the report in Microsoft Word and converted it to a .pdf file. The Dearborn Heights
School District No. 7 completely manufactured a fraudulent report in order to hide the
asbestos exposure at the school.
23.

After her suspicions about the D&D Consulting Report, Ms. Ely became

even more concerned about possible exposure. She feared for herself, her coworkers,
the students and other members of the community due to the exposure. In April 2013,
Ms. Ely reported the incident to The Michigan Occupational Safety and Health
Administration (MIOSHA).
24.

In April 2013, Ms. Ely began discussing the asbestos exposure to some

coworkers, family members and members of the community. She informed them that
the District instructed her to sand asbestos tile and there is a possibility of exposure to
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many people that carries serious health consequences. Ms. Ely and a coworker called a
local television news organization that came on site to conduct an interview.
25.

On or about May 15, 2013, Ms. Ely received a call from MIOSHA

investigator Fred Kirkland. He indicated that the test of the fibers from the tiles she
sanded came back positive for asbestos. MIOSHA was going to cite the District for
violations and there would be closure meeting at the District soon.
26.

Upon hearing this information, Ms. Ely started calling District employees

that were possibly exposed and letting them know that they may have been exposed to
asbestos. She also started informing employees as she saw them at work and
recommended to consider medical surveillance.
27.

On May 16, 2013, Mr. Bartold issued a Memorandum to all employees.

The purpose was, it has come to our attention that certain employees have expressed
concern regarding asbestos in Dearborn Heights School District #7 buildings.
(Exhibit 2) The letter referenced the falsified D&D Consulting report and stated that
MIOSHA has confirmed that the District passed all legal requirements for asbestoscontaining materials. As stated below, this was not true. He also stated that Mr.
Kirkland informed him that no employee needs to be tested for exposure. This is also
not true. Mr. Bartold characterized Ms. Elys statements as the spread of false
information, rumors, and speculation regarding a very serious health concern. (Id.)

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A week later on May 23, 2013, Ms. Ely received two letters from the

District on the same day. One was a layoff notice. The other was a reprimand for
informing people of the possible asbestos exposure. The letter of reprimand alleges
that it has come to his attention that she is informing other employees of the presence
of asbestos in the building, the harmful effects of asbestos exposure, and that they may
want to get tested for exposure to asbestos. (Exhibit 3) He concluded by issuing the
written reprimand and ordering her to stop talking to anybody about the possible
asbestos exposure; you are directed to cease notifying employees and other
individuals that the District maintains levels of asbestos that are not within state or
federal regulations. You are also directed to cease all communication to employees or
other individuals that they should get tested due to the effects of asbestos
contamination. (Id.)
29.

In the May 23, 2013 letter of reprimand, Defendant Bartold relies on the

fraudulent asbestos report to assert that asbestos levels are within state and federal
regulations. He also relies on a report that was conducted May 2013, to imply that
asbestos levels were safe in the summer of 2012. Despite the fact that he was relying
on falsified and outdated reports to assert that nothing dangerous happened, he accused
Ms. Ely of making false statements, when, in fact, she was telling the truth and
attempting to warn coworkers and members of the public regarding the risk of harm:
The District interprets your statements to other employees regarding
the presence of asbestos dust in any District building or any continued
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harm to employees or other individuals caused by contact with

asbestos to be false and made with the intent of inflaming and
provoking a reaction and concern from those employees and
individuals.
(Exhibit 3)
30.

Mr. Bartold sent this letter because the school district has become

a school of choice school district. The District actively recruits students to

come to the district. This was occurring in a critical recruitment period. He
wanted to order Ms. Ely to cease publicly speaking regarding the asbestos
exposure so that the dissemination of this information did not adversely affect
recruiting or retaining students.

31.

On May 31, 2013, MIOSHAs investigator conducted a closure meeting.

At this meeting with District officials and employees, the investigator reported that the
District did violate several MIOSHA standards. He also reported that they are
recommending a medical surveillance program for those individuals that were exposed
or potentially exposed to the asbestos dust.
32.

Defendant Bartold never retracted the false or malicious statements in his

memorandum sent out to employees or his letter of reprimand to Ms. Ely.

33.

Dearborn Heights School District No. 7 did eventually agree to pay for

the medical surveillance of Ms. Ely and Mr. Smith, but no one else. They were
instructed that they must go to the Districts employee clinic. Upon reporting to the
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clinic, however, the medical officials there instructed them that the clinic does not have
the equipment or expertise to monitor for asbestos related health issues. Mr. Smith and
Ms. Ely have undergone periodic medical monitoring from a specialist in that area.
Dearborn Heights School District No. 7 has refused to pay for this monitoring. Mr.
Smith and Ms. Ely obtain the appropriate monitoring at their own expense.
34.

MIOSHA issued written findings that found violations at both Annapolis

High School and Madison Elementary School. The written findings of MIOSHA were
dated June 7, 2013. The cover letter to Ms. Ely states, [w]e wish to inform you that
our investigation revealed conditions which were determined to be in violation of the
Michigan Occupational Health Standards. (Madison Elementary report, Exhibit 4,
Annapolis High School report, Exhibit 5) The report listed three violations labeled
serious. (Id.) The violations were related to the sanding of the floors, failure to
adequately train the staff in regard to asbestos safety, failure to provide appropriate
personal protection equipment, and improper disposal of asbestos material. (Id.)
35.

Ms. Ely continued to warn coworkers and members of the public in

regard to the asbestos exposure and health consequences. The Defendants engaged in a
campaign of harassment and intimidation in an effort to silence her. This retaliation is
the subject of a separate OSHA investigation that is ongoing.
36.

On September 3, 2014, Defendant Thieken issued another reprimand for

false statements. Defendant Thieken stated, [y]ou are further directed to cease
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spreading false rumors regarding the health and safety of employees who work for the
District. It has come to our attention that you have made comments to other District
employees regarding the presence of asbestos in District buildings and the harmful
medical effects that may result from exposure. (Exhibit 6)
37.

In the letter, Defendant Thieken falsely asserts that Ms. Ely made false

statements. Ironically, Defendant Thieken continued the Defendants false statements

with the discredited campaign of lies regarding the asbestos exposure. He again relied
on the falsified and outdated asbestos testing reports to assert that she was untruthful.
He falsely stated that MIOSHA has concluded that the Districts asbestos levels are
within state and federal regulations. He falsely stated that the investigator denied
stating that any employee should get tested due to exposure. Not only did the
investigator orally recommend medical surveillance; the medical monitoring was part
of the written report. (See Exhibits 4 and 5)
38.

In the letter he referenced the previous reprimand warning not to speak

on the issue of asbestos and stated, [y]ou are again directed to cease notifying
employees and other individuals that the District maintains levels of asbestos that are
not within state and federal regulations. You are also directed to cease spreading false
rumors regarding the health and safety of employees who work for the District.
(Exhibit 6)

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Another strange item of the letter is that is misconstrues the speech that

Ms. Ely is engaged. She is not alleging or informing the public that currently there are
asbestos levels beyond the acceptable level under state and federal law. Instead, she is
informing people of the unsafe levels of asbestos in the past due to the sanding of the
asbestos-containing floor tiles. For anybody that may have been exposed, she is
informing them of the adverse health effects and suggesting that they consider testing
due to the exposure. However, the message is loud and clear that she is not to speak to
anybodycoworkers, students, or members of the publicabout the fact that the
District possibly exposed hundreds of children and adults to asbestos.
40.

On this issue of grave public concern, Ms. Ely has the absolute right to

engage in such speech. The reprimands represent a gag order to cease the public
disclosure of this vital public information. She has suffered greatly due to her attempts
to educate and notify others so that they may get medically monitored because early
detection of the illnesses associated with asbestos exposure is the best way to prevent
disastrous effects.
COUNT I
VIOLATION OF THE FIRST AMENDMENT TO THE
UNITED STATES CONSTITUTION
41.

Plaintiff incorporates by reference all preceding paragraphs.

42.

The First Amendment of the United States Constitution provides for

Plaintiff Elys right to the freedom of speech.

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These rights are enforceable against the Dearborn Heights School District

No. 7 and its agents Defendant Bartold and Thieken through the XIV Amendment of
the United States Constitution.
44.

Congress created a cause of action for a violation of these rights under 42

U.S.C. 1983.
45.

Plaintiff Ely engaged in protected conduct by speaking regarding a matter

of a public concern to the persons in the community and those that may have been
exposed to asbestos. The statements were not pursuant to her duties as a public
employee and not done as a means to carry out her employment responsibilities.
Plaintiffs reports concerned the safety and health of those exposed to asbestos.
46.

The potential consequences of failing to address the possible exposure are

life threatening. Those that were in the building at the time of the sanding of the
asbestos-containing floor tiles should know that it occurred and be given the
information to determine whether they ought to be tested.
47.

Nor did Plaintiff Elys speech impair Dearborn Heights School Districts

No. 7s ability to operate the district efficiently and effectively.

48.

Defendants took adverse action against Plaintiff because of her protected

conduct, in that she has been reprimanded and ordered to cease her protected speech
because of her exercise of her right to freedom of speech with the threat that further
speech will result in discipline and discharge.
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WHEREFORE, Plaintiff requests judgment holding Defendants liable for

compensatory damages including; back pay, front pay, embarrassment and
humiliation, pain and suffering, harm to reputation and any other such relief that this
Court deems just and equitable. Plaintiff also requests this Court to award punitive
damages, costs, and attorneys fees.

Respectfully submitted:
MILLER COHEN, P.L.C.
By:

Dated: November 25, 2014

16

/s/Robert D. Fetter
Robert D. Fetter (P68816)
Attorney for Plaintiff
600 W. Lafayette Blvd., 4th Floor
Detroit, MI 48226
(313) 964-4454 Phone
(313) 964-4490 Fax
rfetter@millercohen.com

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA ELY,
Case No.:
Plaintiff,
Honorable
v.
DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7,
TODD THIEKEN, and JEFFREY BARTOLD
in their official and individual capacity,
Defendants.
/
MILLER COHEN P.L.C.
Robert D. Fetter (P68816)
Attorney for Plaintiff
600 W. Lafayette Blvd., 4th Floor
Detroit, MI 48226
(313) 964-4454 Phone
(313) 964-4490 Fax
rfetter@millercohen.com
/
DEMAND FOR TRIAL BY JURY
NOW COMES Plaintiff, THERESA ELY, by and through her attorneys,
MILLER COHEN, P.L.C., and hereby demands for a trial by jury, for all issues so
triable.

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Respectfully submitted:
MILLER COHEN, P.L.C.
By:

Dated: November 25, 2014

/s/Robert D. Fetter
Robert D. Fetter (P68816)
Attorney for Plaintiff
600 W. Lafayette Blvd., 4th Floor
Detroit, MI 48226
(313) 964-4454 Phone
(313) 964-4490 Fax
rfetter@millercohen.com

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THERESA ELY,
Case No.:
Plaintiff,
Honorable
v.
DEARBORN HEIGHTS SCHOOL DISTRICT NO. 7,
TODD THIEKEN, and JEFFREY BARTOLD
in their official and individual capacity,
Defendants.
/
MILLER COHEN P.L.C.
Robert D. Fetter (P68816)
Attorney for Plaintiff
600 W. Lafayette Blvd., 4th Floor
Detroit, MI 48226
(313) 964-4454 Phone
(313) 964-4490 Fax
rfetter@millercohen.com
/
CERTIFICATE OF SERVICE
I hereby certify that on November 25, 2014, the foregoing document was
electronically filed by the undersigneds authorized representative, using the ECF
system, which will send notification of such filing to all parties of record.

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Respectfully submitted:
MILLER COHEN, P.L.C.
By:

Dated: November 25, 2014

/s/Robert D. Fetter
Robert D. Fetter (P68816)
Attorney for Plaintiff
600 W. Lafayette Blvd., 4th Floor
Detroit, MI 48226
(313) 964-4454 Phone
(313) 964-4490 Fax
rfetter@millercohen.com