Fraser to pay city employees $85K in discrimination lawsuit

By: Nick Mordowanec | Fraser - Clinton Township Chronicle | Published November 12, 2019

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FRASER — An employment discrimination lawsuit filed more than two years ago has been settled out of court, according to a city official.

Fraser City Manager Wayne O’Neal confirmed Nov. 4 that the lawsuit filed by employees Kelly Dolland, Michelle Kwiatkowski and Leah Brown has resulted in each individual receiving $85,000 as part of the settlement, totaling $255,000.

O’Neal said the city’s insurance carrier, Argonaut, paid the entire amount. The deductible is $5,000. Dolland deferred her comments to O’Neal, who declined to comment further on the case.

The settlement stems from an Oct. 6, 2017, lawsuit filed in Macomb County Circuit Court against former city Mayor Joe Nichols and former Councilman Matt Hemelberg. It followed a September 2017 tribunal hearing in which the Fraser City Council, at that time, voted to remove Nichols and Hemelberg from their respective positions due to alleged sexual harassment.

The tribunal, led by attorney Robert Huth on behalf of the city, manifested from a 16-page report created by contracted attorney Thomas Fleury. In the report, Fleury used witness testimony that alleged that Nichols and Hemelberg engaged in misconduct that warranted removal from public office.

Brown said during the tribunal that Nichols and Hemelberg allegedly flaunted photos of themselves with scantily clad women. Nichols allegedly made comments about her attire, as well as how he enjoyed watching her leave a room.

Kwiatkowski said during the tribunal that she regularly communicated with and comforted Brown in regard to her discomfort. Dolland cited alleged “lewd remarks” made by the two men.

The trio’s attorney, Herbert Sanders, could not be reached for comment by press time.

Following their ousting, Nichols and Hemelberg filed their own lawsuit in Circuit Court in an attempt to regain their positions. On the same day the three employees filed their suit, Nichols and Hemelberg filed a motion for writ of superintending control, arguing that each was removed from office “without sufficient evidence, without any legal authority to do so, and in violation of the city charter.”

But on Dec. 7, 2017, Macomb County Circuit Court Judge Richard Caretti issued a 23-page opinion denying their motion, saying the two “did not meet their burden of demonstrating that the council failed to perform a clear legal duty, which is to reinstate them to their respective elected offices.”

About 20 days following Caretti’s opinion, Nichols filed an appellate motion to get his job back as mayor. Simultaneously, a Fraser resident was in the midst of gathering signatures for a recall petition to remove Nichols. That effort began prior to the tribunal hearing and its results.

On Jan. 19, 2018, the Michigan Court of Appeals issued a 15-page opinion denying Nichols’ request for reinstatement, saying, “The Circuit Court did not abuse its discretion in denying Nichols’ motion for a writ of superintending control, because he failed to establish that the City Council had a clear legal duty to reinstate him as the mayor of the city of Fraser.”

 

Former mayor maintains innocence
On Nov. 4, Nichols said he was “extremely disappointed” to learn that Fraser’s insurance company agreed to settle the case “based on cost factors, rather than the truth.”

He ascertained that he was given no option in regard to the decision-making process, or to settle, and that the decision was “100%” made by the insurance company.

“I would never have settled,” Nichols said. “I was prepared and have been prepared to go to trial so the truth could really be heard. … I never acted or treated anyone inappropriately in my time as mayor, or for that matter, in my life. Someone asked me if I had to do it over what would I do differently — absolutely nothing.”

A spokesperson at the office of Nichols’ attorney, Robert Seibert, said he does not comment to the press.

As when he and Hemelberg were removed from office, Nichols still maintains that his ousting had more to do with a tax hike rather than his conduct. His position on the public safety millage was shared by Hemelberg and outgoing Councilwoman Yvette Foster.

“It was a bittersweet honor to have been elected and serve as mayor in the city of Fraser,” Nichols added. “I am proud to have served with Councilwoman Foster and acting Mayor Hemelberg — both champions of the people — while saddened by the political corruptness that exists in our community.”

Neither Hemelberg nor his attorney, Audrey Forbush, could be reached for comment by press time.

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