DOC 1 Filed 05/09/UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION NATASHA HENDERSON, Plaintiff, v. HON. CITY OF FLINT, MICHIGAN and KAREN WEAVER, in her individual and of?cial capacity, Defendants. Katherine Smith Kennedy Pinsky, Smith, Fayette Kennedy LLP 146 Monroe Center St. NW, Suite 805 Grand Rapids, MI 49503 616?451?8496 Attorneys for Plainti?? COMPLAINT AND DEMAND FOR JURY TRIAL Plaintiff Natasha Henderson (?Ms Henderson? or ?Plaintiff?), by her attorneys, Pinsky, Smith, Fayette Kennedy LLP, brings this action against Defendant City of Flint, Michigan (?Flint?) and Mayor Karen Weaver. Ms. Henderson alleges as follows with knowledge as to her own actions and upon information and belief as to all other matters: I. NATURE OF THE ACTION 1. This action alleges a Violation of the First Amendment pursuant to 42 U.S.C. 1983 wrongful discharge in Violation of the Michigan Whistleblowers? Protection Act, Mich. DOC 1 Filed 05/09/Comp. Laws 15.361 et seq; a tort claim for wrongful termination in violation of Michigan Public Policy; and for breach of contract under the common law of the State of Michigan. 11. JURISDICTION AND VENUE 2. This civil litigation action seeks damages against Defendants for committing acts under the color of law and depriving Plaintiff of rights secured by the Constitution and laws of the United States. Defendant Weaver, While acting in her capacity as Mayor of the City of Flint, deprived Plaintiff of her rights, privileges and immunities as guaranteed by the First, Fifth and Fourteenth Amendments to the Constitution of the United States. This Court has jurisdiction of this action under 42 U.S.C. 1983 and under 28 U.S.C. 1343. 3. The jurisdiction of this Court is further invoked pursuant to 28 U.S.C 1331. 4. Plaintiff invokes the pendant jurisdiction of this Court under 28 U.S.C. 1367 for her state law claims. 5. Plaintiff is a citizen and resident of the State of Michigan and a citizen of the United States. 6. Venue is proper in this District. 111. PARTIES A. The Plaintiff 7. Plaintiff Natasha Henderson is a resident of Muskegon, Michigan. Prior to the occurrences complained of herein, she deservedly enjoyed and held the good opinion, credit, and esteem of her neighbors, business associates and general public. DOC 1 Filed 05/09/From February 23, 2015, until her wrongful termination on February 12, 2016, Ms. Henderson was employed as City Administrator by the City of Flint, Michigan. 9. Prior to her tenure as Flint City Administrator, Ms. Henderson spent more than a decade of service in local government, including more than seven years as the city manager of Muskegon Heights, Michigan. 10. In Plaintiff Henderson?s capacity as City Administrator, she was responsible for overseeing numerous departments related to operations of the City of Flint including Finance, Police, Fire, Public Works, Human Resources and Flaming and Development. B. The Defendants ll. Defendant City of Flint is the seventh-largest city in Michigan and the county seat of Genessee County. Because of Flint?s ongoing ?nancial insolvency, the City is overseen by a Governor?appointed five?member Receivership Transition Advisory Board along with the nine-member City Council and the Mayor. 12. Defendant City of Flint is a municipality duly incorporated under the laws of the State of Michigan. 13. Defendant Karen Weaver was, at all times material to this Complaint, an elected of?cial as the Mayor of the City of Flint. 14. At all times material to this Complaint, these Defendants acted toward Plaintiff under the color of the statutes, ordinances, customs and usage of the State of Michigan, and the City of Flint. IV. FACTUAL ALLEGATIONS 15. Plaintiff Henderson was offered a position as the City Administrator of Flint, Michigan, which she accepted in December, 2014. She was appointed to this position, the DOC 1 Filed 05/09/highest, non?elected of?ce in Flint, through a highly-competitive selection process, during which more than 25 other quali?ed applicants were considered. When the City of Flint offered Ms. Henderson the position, she resigned her employment as City Manager of Muskegon Heights to take the position in Flint. 16. Ms. Henderson?s hiring was approved by Darnell Earley, who at the time served as Flint?s state-appointed Emergency Manager. 17. Plaintiff Henderson?s contractual employment relationship with Defendant is embodied in the attached ?City Administrator Employment Agreement? (?Employment Agreement? or ?Agreement?), Exhibit A. 18. The position held by Plaintiff Henderson was a contract position with a term of service of ?ve (5) years, commencing on February 23, 2015 and continuing up to and including February 22, 2020. 19. According to the terms of the Employment Agreement, the City of Flint was permitted to terminate Ms. Henderson?s employment prior to expiration of her contract only by mutual agreement of the City?s temporary Emergency Manager and City Council, or by mutual agreement of the Mayor, City Council and RTAB. 20. Plaintiff Henderson began working for the City of Flint on February 23, 2015, and her performance as City Administrator was beyond reproach. Ms. Henderson also was an outspoken champion of Flint amid the City?s lead contamination water crisis. 21. In October 2015, Ms. Henderson fought publicly for state funding to connect Flint to the Detroit Water and Sewage System Department, in direct opposition to Governor Rick Snyder?s position on such funding. Ms. Henderson was key in securing the funds needed to make the switch from the Flint River back to the DWDS water system and received much praise DOC 1 Filed 05/09/from the City Council for doing so. 22. On November 3, 2015, the City of Flint elected Karen Weaver (?Mayor Weaver?) as the City?s mayor, and she assumed the position on November 9, 2015. At no time did Plaintiff Henderson have any authority over Mayor Weaver or anyone in the Mayor?s of?ce. 23. On or about February 9, 2016, Flint employee Maxine Murray privately reported concerns to Plaintiff Henderson. Ms. Murray came to Plaintiff Henderson in tears and stated to Henderson that she feared going to jail. Ms. Murray, an assistant who reported directly to Mayor Weaver, confided in Plaintiff Henderson that Mayor Weaver had instructed Ms. Murray and a volunteer for the city, to direct donations from Safe Water/ Safe Homes?~a donation fund for families impacted by Flint?s water crisis that was administered by the Community Foundation of Greater Flint with the approval of the a different fund, named ?Karenabout Flint.? 24. Upon information and belief, the ?Karenabout Flint? fund was a political action committee or campaign fund created at the direction of Defendant Weaver. 25. Ms. Murray informed Plaintiff Henderson that she was specifically directed to tell donors and potential donors step-by-step how to donate to the Karenabout Flint fund through its website, rather than instruct them in the steps to donate to the Charity Safe Water/ Safe Homes fund through the City of Flint website, which she and the volunteer had previously been doing. 26. Upon information and belief, neither the Flint City Council nor RTAB approved a redirection of donors from Safe Water/ Safe Homes to a different account, nor did they know about the fund created at the direction of Defendant Weaver. 27. On February 9, 2016, Plaintiff Henderson verbally reported her concern that the redirection of charity funds should be further investigated by Flint Interim Chief Legal Counsel Anthony Chubb. Plaintiff Henderson had no authority over Mr. Chubb and was reporting the DOC 1 Filed 05/09/issue in her capacity as a concerned citizen for the people of the City of Flint. 28. On February 10, 2016, Plaintiff Henderson reiterated in an email she sent to Mr. Chubb. In the email, Plaintiff Henderson stated, ?[P]lease initiate an investigation of this matter in your capacity. In the meantime, please advise appropriate actions I can take to protect employees from potential retaliation resulting from them reporting allegations such as this.? In response, Mr. Chubb replied, will take prompt action and advise you later today.? 29. Upon information and belief, Interim Legal Counsel Chubb informed Mayor Weaver of Plaintiff Henderson?s report and consulted with Mayor Weaver on his response to Ms. Henderson. 30. Not hearing from Mr. Chubb, Plaintiff Henderson again contacted him via email on February 12, 2016 requesting an update indicating that, ?This is a very serious matter.? 31. Within hours, Mayor Weaver called Plaintiff into her office and unilaterally terminated Plaintiff Henderson?s employment as City Administrator, effective February 12, 2016. Though the terms of Plaintiff? employment contract require a mutual agreement between the Mayor and the City Council, or the City Council and the RTAB, Defendant Weaver sought no such agreement. 32. Mayor Weaver, Mr. Chubb, Charlie McClendon (Interim Human Resources Director), and Ms. Henderson were present at the termination meeting. Plaintiff asked why she was being terminated. Mayor Weaver responded that she had met with authorities at the State of Michigan Who indicated that the State of Michigan could no longer fund Ms. Henderson?s salary as Flint?s City Administrator. Plaintiff Henderson pointed out that the State did not pay her salary the City of Flint did. Defendant Weaver had no response to this and demanded Ms. Henderson to turn in her keys, remove all personal effects from her of?ce, and turn in other City DOC 1 Filed 05/09/Flint property such as phones or computers by the end of the business day, February 12, 2016. Soon after Ms. Henderson?s termination meeting, Mayor Weaver issued a press release that ?Ms. Henderson has been relieved of her responsibilities.? 33. On February 19, 2016, Plaintiff?s attorney, David Sanford, sent a letter to Mr. Chubb stating the claims Ms. Henderson had against the City for breach of contract and wrongful discharge, inviting the City to attempt to resolve Plaintiffs claims. 34. On February 22, 2016, several City Council members sent a letter complaining of the actions of Defendant Weaver and against the termination of Plaintiff Henderson. (Exhibit B.) 35. Following Ms. Henderson?s wrongful termination, on February 22, 2016 and March 14, 2016, Mayor Weaver and Mr. Chubb submitted resolutions to the Flint City Council asking the Council to support Mayor Weaver?s decision to ?re Ms. Henderson. Upon information and belief, Mayor Weaver and/ or Mr. Chubb neither informed the Flint City Council of Ms. Henderson?s reports of the redirection of charity hands by Ms. Weaver, nor did Mayor Weaver and/ or Mr. Chubb inform the Council about Ms. Henderson?s Whistleblowing claims. 36. On February 22, 2016, the Flint City Council voted to postpone the decision regarding Plaintiff termination until the March 14 meeting. Upon information and belief, prior to that vote to postpone the decision on the resolution, seven of the council members indicated that they would not support the decision to terminate Plaintiff, and a vote was taken, whereby seven council members were against the resolution, one abstained and one was absent. 37. On February 29, 2016, Attorney Sanford sent a second letter to Attorney Chubb con?rming that the parties the City and Plaintiff Henderson had agreed to participate in voluntary facilitative mediation to attempt to resolve claims surrounding her termination by Mayor Weaver. DOC 1 Filed 05/09/38. Subsequently, on March 14, 2016, in a closed session, the Flint City Council voted to suspend its usual procedural rules, which prevent reconsideration of a resolution within 30 days of a prior vote. Upon information and belief, Mayor Weaver disparaged and defamed Plaintiff Henderson during this closed meeting, alleging misconduct and other wrongdoing that never occurred and was patently false. Following this, the Flint City Council voted 9-0 to endorse Mayor Weaver?s prior termination of Plaintiff Henderson?s employment, and the resolution that had failed on February 22 passed. Upon information and belief, the City Council was not made aware that Plaintiff had alleged whistleblower claims, nor that the City had agreed with Plaintiffs attorney to mediate such claims. 39. In conducting the closed?door Executive Sessions on March 14, 2016, the City of Flint violated the Michigan Open Meetings Act Mich. Comp. Laws 15.261 et seq. The Open Meetings Act creates public notice requirements for meetings of public bodies in the State, including the Flint City Council, and requires that meetings of public bodies be open to the public. Under Section 8 of the OMA, Mich. Comp. Laws 15.268, the Flint City Council was permitted to consider Ms. Henderson?s dismissal in a closed session only if she requested that the meeting be closed to the public. 40. Plaintiff Henderson did not request that the meeting held on March 14, 2016, be closed to the public. 41. Since the March 14, 2016 meeting, Defendant Weaver has continued to disparage and defame Plaintiff Henderson to City and State employees and the general public through the media. 42. Because of Defendants? conduct, Ms. Henderson has not only experienced lost income due to her wrongful termination. She has forfeited other potential opportunities for both DOC 1 Filed 05/09/gainful employment and career advancement, as a result of the public nature of her wrongful termination, which was reported widely by media outlets in Michigan. Ms. Henderson?s ordeal and its consequences have damaged her economically, injured her reputation, subjected her public humiliation, damaged her personal relationships, diminished her employment prospects, and caused her signi?cant mental and emotional distress. COUNT I VIOLATION OF FIRST AMENDMENT RIGHTS PURSUANT TO 42 USC $1983 43. Plaintiff re?alleges and incorporates by reference all allegations in all preceding paragraphs. 44. Plaintiff, as a private citizen and public employee of the City of Flint, was entitled to constitutional protection of free speech. In notifying the City Attorney of the alleged instructions to redirect donations from the Safe Water/ Safe Homes fund to the Karenabout Flint fund, Plaintiff was engaged in protected activity under the constitution of the United States. 45. The speech was and is a matter of public concern. 46. Defendants, in terminating the employment of Plaintiff because of her disclosure of actual or potential wrongdoing, caused her to suffer an injury that would likely chill a person of ordinary ?rmness from continuing to engage in that activity. 47. The discharge of Plaintiff was motivated by Plaintiff?s exercise of her constitutional rights. 48. The conduct of Defendants described and complained of above constitutes unreasonable and unconstitutional interference with and infringement upon Plaintiff? exercise of her rights of free speech, guaranteed under the First and Fourteenth Amendments to the United States Constitution. 49. As the direct consequence and result of the acts of Defendants, Plaintiff suffered DOC 1 Filed 05/09/much anxiety and distress, discomfort and embarrassment. 50. The illegal discharge and subsequent defamatory statements of Plaintiff by Defendants was motivated by Plaintiffs exercise of her First Amendment rights to criticize a public of?cial. 51. Defendants? actions were intended to harass and punish Plaintiff for exercising her constitutional rights, and was an oppressive and unlawful attempt to limit Plaintiff 5 rights to continued employment and, failed to give Plaintiff due process and violated any property interest she had in her employment, all in violation of the First, Fifth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983. 52. As the direct consequence and result of the acts of Defendants, Plaintiff was deprived of her employment, suffered much anxiety, distress, discomfort and embarrassment, and damage to her reputation. COUNT II WRONGFUL TERMINATION IN VIOLATION OF THE PROTECTION ACT 5 3. Plaintiff re?alleges and incorporates by reference all allegations in all preceding paragraphs. 54. Plaintiff Henderson was an employee, and Defendant City of Flint was her employer, covered by and within the meaning of Michigan?s Whistleblowers? Protection Act, Mich. Comp. Laws ?15.36l et seq. 55. Plaintiff reported suspected violations of State and Federal laws, regulations, and/or rules governing the use of public donations. 56. Defendant City of Flint, by its agent(s), was aware that Plaintiff reported 10 DOC 1 Filed 05/09/Violations or suspected Violations to a public body. 57. Defendants? actions in retaliating against Plaintiff terminating her employment were intentional and in disregard for the rights of Plaintiff. 58. The retaliatory conduct of Defendants violates Michigan?s Whistleblowers? Protection Act, Mich. Comp. Laws 15.362. 59. As a direct and proximate result of the Violation of Plaintiff?s rights as alleged, Plaintiff has suffered irreparable harm, injuries, and damages, including but not limited to loss of earnings and earning capacity, past and future lost earnings, and the value of fringe benefits. Plaintiff has sustained humiliation, outrage, indignity, mental and emotional distress, embarrassment, anxiety about the future, damage to her good name and reputation, and loss of the ordinary pleasures of everyday life. WRONGFUL DISCHARGE IN VIOLATION OF PUBLIC POLICY POLICY 60. Plaintiff Henderson re-alleges and incorporates by reference each and every allegation in each and every aforementioned paragraph as if fully set forth herein. 61. During the course of her employment With Defendant City of Flint, Plaintiff refused to acquiesce in activities that she believed to be potential violations of law, and internally objected to those activities. 62. In particular, Plaintiff attempted to comply with State and Federal laws, regulations and rules governing the use of public funds, and asked for guidance to do the same from the City?s legal counsel. 63. The termination of Plaintiff Henderson was motivated by her internal questioning of or objections to practices which implicated or could have implicated non-compliance with 11 DOC 1 Filed 05/09/State and/or Federal law. 64. Plaintiff? termination violates clearly established public policy of the State of Michigan that an employer may not adversely alter an employee?s employment when the reason for the alteration was the failure or refusal to violate a law in the course of employment. 65. As a direct and proximate result of the violation of Plaintiffs rights as alleged, Plaintiff has suffered irreparable harm, injuries, and damages, including but not limited to loss of earnings and earning capacity, past and future lost earnings, and the value of fringe benefits. Plaintiff has sustained humiliation, outrage, indignity, mental and emotional distress, embarrassment, anxiety about the future, damage to her good name and reputation, and loss of the ordinary pleasures of everyday life. COUNT BREACH OF CONTRACT 66. Plaintiff re?alleges and incorporates by reference all allegations in all preceding paragraphs. 67. Plaintiff Henderson was employed by the City of Flint pursuant to Defendant City?s offer to her as well as her Employment Agreement. 68. Defendants? failure and refusal to abide by the terms of this contract of employment by summarily ?ring Plaintiff without approval as required under the Contract constitutes a breach of said contract. 69. Defendants? intentional violation of the Open Meetings Act by not issuing proper notice, nor allowing Plaintiff to request an open or closed meeting, continued to breach the contract and thwarted any effort by Defendants to remedy the original breach of contract. 12 DOC 1 Filed 05/09/70. All conditions precedent to full performance on the part of Plaintiff occurred. The contract remains breached. 71. As a direct and proximate result of Defendants? breach of contract, Plaintiff Henderson has sustained signi?cant damages including consequential damages. RELIEF REQUESTED WHEREFORE, Plaintiff Natasha Henderson requests the following relief: A. An award of unpaid wages, compensatory and consequential damages, and exemplary or punitive damages, in an amount to be established at trial; B. Attorneys? fees, costs and expenses; C. Prejudgment and post?j udgment interest; and D. Such other legal and equitable further relief as the Court may deem just and proper. JURY DEMAND Plaintiff demands a trial by jury of all issues. Respectfully Submitted, Pinsky, Smith, Fa ett Dated: May 2016 By I fatheii-r? dy, Esq. Busine Addre and Telep one Number: 146 Monroe Center Street NW, Suite 805 Grand Rapids, MI 49503 (616) 451-8496 l3