Granite City argues in a motion to dismiss that it was wrongfully accused of assuming control of the Metro East Sanitary District in a former MESD employee’s suit alleging he was terminated due to political affiliation and denied rehire due to his age.
Defendant Granite City filed a combined motion to dismiss plaintiff Otto Dunham’s complaint on June 10 through attorney Erin Phillips of Unsell Schattnik and Phillips PC in Wood River.
Granite City argues that the Metro East Sanitary District Board of Commissioners maintains control of the entity. Phillips wrote that an amendment passed on Jan. 1, 2020, did not give it control of the Metro East Sanitary District. Rather, the law gave Granite City the power to appoint one of the five board of commissioners.
“The amendment merely gave Granite City’s appointee a ⅕ voting right on the Board of Commissioners. Madison County’s appointees now have a ⅖ voting right and St. Clair County’s appointees continue to have a ⅖ voting right,” Phillips wrote.
“The Metro East Sanitary District Act of 1974 makes it clear that the Board of Commissioners is the entity which controls, owns and maintains MESD,” she added. “It is not defendant Granite City. While defendant Granite City appoints one of the Board Members to MESD, the remaining four board of commissioners come equally from Madison County and St. Clair County. There is no basis for plaintiff to assert Granite City is a joint employer.”
Granite City also argues that it was not Dunham’s employer, meaning “plaintiff can plead no set of facts that would support an age discrimination action against defendant Granite City.”
Defendants Steve Adler, Scott Oney, Rick Fancher and Metro East Sanitary District also filed a motion to dismiss on April 30 through attorney Gregg Kinney of HeplerBroom LLC in Edwardsville.
The defendants argue that while Dunham failed to attach the employment contract he claims was breached, employment agreements of indefinite duration are terminable at will.
“Assuming for purposes of this motion that a contract did exist, it is clear under Illinois law that the contract could be terminated by defendant at any time for any reason,” Kinney wrote.
The defendants argue Dunham’s complaint should be dismissed because he alleges age discrimination and breach of contract together.
“These defendants are entitled to specific counts containing allegations setting forth separate causes of action upon which defendants can separately evaluate the claims being made and as to which they can prepare their respective defenses,” Kinney wrote.
The defendants also argue that in order to allege tortious interference with a business expectancy and a contract, the tortfeasor must be a third party to the contractual relationship. However, Oney and Fancher are executive level employees with MESD.
Plaintiff Otto Dunham filed an amended complaint on April 1 through attorney Brian Wendler of Wendler & Zinzilieta PC in Edwardsville. The suit was filed against Madison County Board Chairman Kurt Prenzler, Adler, Oney, Fancher, Metro East Sanitary District and Granite City.
According to the amended complaint, Prenzler was elected Chairman of the Madison County Board in 2016 and was responsible for appointing certain department heads to manage county offices, including the officers of MESD. When he took office in 2017, he appointed Adler as executive director and Doug Hulme as MESD board chairman while also serving as president of MESD. Hulme is not named a defendant in the suit.
On July 28, 2017, Adler allegedly laid off eight MESD employees, including Dunham. The plaintiff claims his termination was based on political affiliations. Adler allegedly hired part-time employees to fill the vacant positions “in direct violation of the MESD contract with its employees.”
Dunahm claims a union grievance was filed by the laid off employees. They allegedly prevailed, “thereby making clear MESD’s act of laying off workers to replace with part-time workers was improper.”
The suit alleges Prenzler informed Granite City that the laid off employees had dropped or abandoned their claim while attempting to withhold the paperwork needed to calculate the payments owed.
Dunham claims that in January 2020, a new law was passed giving Granite City control of MESD, which the defendant denies is accurate. Fancher replaced Adler as executive director and Oney replaced Hulme as president of MESD. Oney also served as building inspector for Granite City.
Dunham alleges Fancher previously promised him that “as soon as a new law was passed that would permit the city of Granite City take control of MESD plaintiff would get his job back at MESD.”
On Jan. 15, 2020, Dunham alleges Fancher called him to his office and said that when he informed Oney that the plaintiff was to be rehired, he allegedly replied, “Are you sure you want to hire a 64 year old guy?” Fancher allegedly affirmed that Dunham was a “very good and knowledgeable worker,” the suit states.
On Jan. 30, 2020, Fancher allegedly told Dunham he would begin working again on Feb. 17, 2020, and a prerequisite pre-employment drug test was scheduled.
However, on Jan. 14, 2020, Fancher allegedly told Dunham that the MESD board decided to move his start date back to April 1, 2020.
When he still had not been called back to work by May 29, 2020, Dunham claims he inquired about his position. He was allegedly informed that he would not be returning to work at MESD on June 3, 2020.
Dunham claims he had accepted but then declined a job with another company because Fancher had promised and assured him he had gotten the job. .
“Plaintiff relied on such promise,” the suit states. “Plaintiff’s reliance was justified and reasonable. Plaintiff lost the other job to his detriment.”
He seeks a judgment in excess of $50,000 for each count, plus costs.
Prenzler answered the complaint on April 30 through attorney Christi Coleman of Sandberg Phoenix & von Gontard PC in Edwardsville, denying the allegations against him.
According to the affirmative defenses, Prenzler argues that Dunham’s claims are “frivolous and have no basis in fact or law.”
Prenzler claims punitive damages are not recoverable because he “neither made any decision, nor took any action that was motivated by malice or evil malice or intent, nor was defendant callously indifferent to plaintiff’s rights …”
“All actions taken by the county with respect to plaintiff were taken in good faith, for legitimate and lawful reasons and taken in the course of the performance of the defendant’s duties in an organization, and with the belief that his actions did not violate established principles of law of which he was or should have been aware,” Coleman wrote.
Prenzler, Adler, Oney, Fancher and Metro East Sanitary District previously sought dismissal from Dunham’s original complaint, arguing that his breach of contract claim fails because Illinois law allows an employee to be terminated at any time for any reason.
They also argued that Dunham had not exhausted the administrative procedures under the Human Rights Act before filing the lawsuit. Dunham’s charge of discrimination with the Illinois Department of Human Rights was filed on Oct. 21 and remains ongoing.
Prenzler also previously filed an individual motion to dismiss, arguing that the complaint attaches no liability to him and that Prenzler could not retaliate against the plaintiff for legal and political events that had nothing to do with Dunham.
Madison County Circuit Judge Sarah Smith entered an order finding the previous motions to dismiss moot after granting Dunham’s request to file an amended complaint. The current motions to dismiss remain pending.
Madison County Circuit Court case number 20-L-1545