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Part of Bjorne federal court lawsuit against Ishpeming, Ottenwess tossed

May 16, 2013
By JOHN PEPIN - Journal Staff Writer (jpepin@miningjournal.net) , The Mining Journal

MARQUETTE - U.S. District Court Magistrate Judge Timothy Greeley agreed this week to dismiss part of the lawsuit against the city of Ishpeming and city manager Jered Ottenwess by former Ishpeming Police Chief Jim Bjorne.

Bjorne filed suit related to his September 2011 termination by Ottenwess.

On May 1, Greeley heard oral arguments from attorneys on a motion by the city and Ottenwess to dismiss some of Bjorne's claims without a full trial, arguing there was no genuine issue of material fact for trial and the defendants were entitled to a judgment as a matter of law.

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BJORNE

Greeley took the matter under advisement and issued an opinion and order Tuesday.

Greeley dismissed Bjorne's claim the city and Ottenwess violated the 14th Amendment for failing to give notice and an opportunity to be heard prior to his termination from his job and he also dismissed a 1st Amendment retaliation claim.

"This leaves plaintiff's claim of retaliatory discharge under Michigan's Worker's Compensation Act and a Michigan Whistleblower's Protection Act claim," Greeley wrote in his order. "Plaintiffs have asserted in these remaining claims that Bjorne's state law rights were violated."

Greeley said he will allow the parties in the lawsuit to file briefs on the issue of whether the U.S. District Court can exercise jurisdiction over those remaining state law violation claims.

A June 11 deadline was set for filing the legal briefs. Oral argument on the issue will be held following a settlement conference scheduled for 9 a.m. June 27 in U.S. District Court in Marquette.

In Greeley's opinion, he laid out the background details of the case.

"Bjorne was fired after a series of events that occurred, starting with his declining medical condition," Greeley wrote.

In 2009, Bjorne submitted medical documentation to limit his duties to administrative matters only. In April the following year, Bjorne submitted a permanent administrative duty only work restriction to the city, Greeley wrote.

"Ultimately, Bjorne's medical condition prevented him from working full days as the Ishpeming police chief," Greeley wrote. "Bjorne attempted to retire from the city by combining three years of Marquette County Sheriff Department service with his city of Ishpeming service."

The city had allowed similar transfer of service arrangements for other employees in the past, according to Greeley's order. Bjorne needed a total of 25 years of service to get his full pension. He was hoping to retire at age 50. The full pension amount was $37,243.

In February 2011, the Ishpeming City Council rejected Bjorne's retirement proposal.

"Admittedly, Bjorne was angry with the decision and told Council Member Claudia Demarest, who had voted against the proposal, that he was not surprised at her decision given her low intelligence," Greeley wrote. "As a result, Bjorne was reprimanded by the city for this comment."

Bjorne's medical condition worsened and he had a spinal cord stimulator implanted in April 2011. He returned to administrative duties, working four hours each day for two months. He filed a worker's compensation claim in August 2011.

Bjorne believed Demarest was following him while he was working as police chief and Bjorne complained to Ottenwess, who said he would not get involved.

"Ottenwess characterized this conversation as informal and indicated he believed that it did not appear important to Bjorne," Greeley wrote. "However, the perceived harassment continued after this conversation. As a result, Bjorne sent Demarest an email informing her that she was stalking him and that he would take action against her if the stalking did not stop."

Greeley said the email was also sent to the city manager, city attorney and the mayor. Bjorne said in the email his statement was not intended as a threat or a misuse of his authority.

On Sept. 2, 2011, Bjorne's doctor continued his four-hour-per-day work restriction. On Sept. 23, 2011, Ottenwess called a meeting with Bjorne, who provided the note from his doctor.

"Bjorne thought the meeting was to discuss his medical condition and restrictions," Greeley wrote. "Ottenwess had a different purpose for the meeting. Ottenwess informed Bjorne at the meeting that he would be terminated or he could resign. Ottenwess had prepared a termination letter prior to the meeting."

Bjorne was told the termination was because he had gone outside the chain of command by directly contacting Demarest with the email and because of the derogatory comment he made to her at the city council meeting.

In the lawsuit, Bjorne claimed he was terminated in retaliation for invoking his 1st Amendment right to send an email to Demarest to ask her to stop alleged harassment and stalking behavior.

Greeley said to establish a 1st Amendment retaliation claim, the plaintiffs had to prove Bjorne was engaged in activities protected by the Constitution or statute and that Bjorne's termination was at least in part because of his exercising of the protected conduct.

"As a public employee, Bjorne must have made the Constitutionally alleged protected statement in his capacity as a citizen and his statement must address matters of public concern," Greeley wrote.

Greeley said the email was sent by Bjorne in his official capacity as police chief and it involved a private, not public, matter.

Greeley ruled Bjorne's 14th Amendment rights were not violated because he had previously been reprimanded and informed that he was subject to progressive discipline for his conduct in insulting Demarest.

He was told at the meeting with Ottenwess he was being terminated from his employment for writing the email to her after he was already subjected to progressive discipline.

Greeley said Bjorne was given the opportunity to tell his side of the story. He was provided notice and the opportunity to be heard.

John Pepin can be reached at 906-228-2500, ext. 206.

 
 

 

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