UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

NORTHERN DIVISION

JEFFREY POLEK,

CASE NO. 09-CV-13869

Plaintiff,

DISTRICT JUDGE THOMAS L. LUDINGTON

v. MAGISTRATE JUDGE CHARLES E. BINDER

GRAND RIVER NAVIGATION

COMPANY, INC.,

Defendant.

 /

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

(Doc. 24)

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED that Defendant’s motion for

summary judgment be DENIED.

II. REPORT

A. Introduction

This retaliatory discharge case brought under the Seaman’s Protection Act, 46 U.S.C. §

2114, commenced on September 30, 2009. On July 29, 2010, Defendant Grand River Navigation

Company, Inc., (hereafter “Defendant” or “GRN”) filed a motion for summary judgment. By order

of U.S. District Judge Thomas L. Ludington, the motion was referred to the undersigned magistrate

judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1). (Doc. 25.) On August

27, 2010, Plaintiff filed a response to the motion (Doc. 28), and on September 17, 2010, Defendant
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filed a reply. (Doc. 29.) A hearing was held on September 28, 2010, and the motion was taken

under advisement. The motion is therefore ready for Report and Recommendation.

B. Seaman’s Protection Act

“Admiralty and maritime law includes a host of special rights, duties, rules, and

procedures.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 446, 121 S. Ct. 993, 148 L. Ed.

2d 931 (2001). The Seaman’s Protection Act provides in relevant part that “[a] person may not

discharge or in any manner discriminate against a seaman because the seaman in good faith has

reported or is about to report to the Coast Guard or other appropriate Federal agency or department

that the seaman believes that a violation of a maritime safety law or regulation prescribed under

that law or regulation has occurred . . . .” 46 U.S.C. § 2114(a)(1)(A). The statute’s goal is to

guarantee that, “when seamen provide information of dangerous situations to the Coast Guard, they

will be free from the ‘debilitating threat of employment reprisals for publicly asserting company

violations’ of maritime statutes or regulations.” Gaffney v. Riverboat Services of Indiana, Inc., 451

F.3d 424, 444 (7th Cir. 2006) (quoting Passaic Valley Sewerage Comm’rs v. United States Dep’t

of Labor, 992 F.2d 474, 478 (3d Cir. 1993)).

C. Background

Many of the facts of this case are undisputed. Plaintiff was employed by Defendant as a

3rd Assistant Engineer aboard the M/V Manistee. (Polek Dep., Doc. 24, Ex. 2 at 5.) On

September 6, 2009, while the vessel was docked, Plaintiff became aware of a leak in the starboard

side bow of the vessel and reported it to the chief engineer, who stated that he already knew of the

leak and that it was being taken care of. Plaintiff remained concerned about the leak and

mentioned it again to Chief Engineer Peterson as the vessel was underway to Stoneport, Michigan.
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Chief Peterson told Plaintiff that he “had taken pictures, sent the pictures to the office. The office

said it was okay. Don’t worry about it.” (Pl.’s Dep., Doc. 28, Ex. A at 22.)

Late at night on September 9, 2009, Plaintiff sent an email to Richard Minnich of the Coast

Guard’s Toledo office, stating in part:

On 9/6/09 the dock boss in St. Joe pointed out to the mate on watch . . . that as we

were ballasting the vessel there was water streaming out of the outer hull of the

vessel in the vicinity of #6 starboard ballast tank. Many crewmembers (including

myself) have seen this leak. It appears to be about 4 feet above the water line when

the vessel is in a ballasted condition, and I believe it is BELOW the water line when

we are loaded with cargo.

The chief engineer (Einar Peterson) took photos of the leak and reported the leak to

John Hayes the port engineer. Photos of the leak were also sent via email to Mr.

Hayes. Mr. Hayes reportedly told the Chief engineer “it (the leak) in his opinion did

not appear to be a big deal and NOT to report it or make a big deal about it.” I do

not know the exact procedures/regulations regarding such findings but I think it

merits at least an inspection to see if this “leak” needs repair, or if it is safe to keep

sailing as is until the end of the season.

(Doc. 28 at Ex. A.) Plaintiff asked the Coast Guard officer not to reveal his name as he was still

serving on the vessel. (Id.)

The following morning, September 10, 2009, Chief Peterson sent an email to Engineering

Superintendent John Hayes, which stated in part the following:

I have an issue with the crew.

Jeff Polek is a VERY good and conscientious engineer. However I believe he is also

a potential liability to the company.

I went into the Control Room, and he began asking me about the “big crack” in the

hull, and about our “slamming” into the bridge, and about going “up on the rocks,”

in St. Joe. I had already been told that he was heard on the phone telling someone

about these things, as was one of the “new” crewmembers.

* * * *

I let him know that if, indeed, it had happened, and I was the least bit concerned, that

I would have taken steps to ensure that the vessel was safe, and that I had no
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intention, nor desire to go down with ANY ship. I also told him that people getting

on the phone and telling others ashore such nonsense, would potentially put the

vessel’s (as well at their own) future usefulness in jeopardy. All it would take it for

someone to “drop a dime” to the Coast Guard, and we would be tied up for an

indefinite time while they investigated.

He is still not satisfied, and insists that his safety out here is paramount. Like I said,

he’s a good Engineer, but he really is a weenie at times. I believe the crews need to

be informed and relate all such concerns to the captain and/or chief engineer, and to

refrain from broadcasting anything which happens (or appears to happen) aboard the

vessels, to avoid having the vessels taken out of service. 

(Doc. 28 at Ex. C.) 

Less than thirty minutes later, Hayes forwarded the email to Defendant’s Vice President of

Operations Ed Wiltse, Mark Rohn, and Personnel Manager Rick Turman, adding his own comment

that he “did not feel that this was a safety issue as it appeared to be coming from the seam and was

not a hull crack.” (Id.) Within another thirty minutes, V.P. Ed Wiltse responded via email to Chief

Peterson, stating in part that “John has arranged for Ken Siford to examine the Manistee at the

earliest opportunity when the vessel gets down to Cleveland on Saturday,” and that “Ken is our

Company’s expert with many years of experience in hull and ship structure issues and it will be

him who will determine the proper action here – not the nonsensical ravings of an inexperienced

junior engineer with almost no knowledge of such matters.” (Wiltse email dated Sept. 10, 2009,

at 10:30 am, Doc. 28 at Ex. C.) Wiltse went on to instruct Chief Peterson,

Please explain this to Mr. Polek and inform him that we do not intend on relying on

his lack of experience in such matters to change our operating policies and, of

course, if he still feels that he has a better grasp on ship structure than the Captain,

Chief Engineer, Engineering Superintendent, and Vice President of Operations; that

maybe he would feel more comfortable in another position elsewhere.

(Id.)
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Later that day, at approximately 1500 hours, while the vessel was moored in Stoneport,

officials from the Coast Guard’s Sault St. Marie office contacted Captain Brezinski via telephone

aboard the M/V Manistee and informed him that someone had reported that there was a hole or a

crack in the hull. (Brezenski Dep. at 24-25, 30-31; Minnich Dep. at 28.) 

At approximately 1600 hours, Chief Engineer Peterson approached Plaintiff on the deck and

they had a conversation. The substance of that conversation is in dispute. Plaintiff asserts that he

was fired; Defendant asserts that Plaintiff quit. In any event, Plaintiff departed the vessel shortly

thereafter. Prior to his departure, Plaintiff informed the ship’s captain that he had contacted the

Coast Guard. Defendant states that later that evening the Coast Guard personnel came aboard the

vessel and “identified a 2” - 4” fracture in the side shell, and required [Defendant] to make

permanent repairs to the shell plating once the vessel arrived in a Lake Erie port in the next few

days.” (Doc. 24, Br. at 6.)

Defendant moves for summary judgment on Plaintiff’s claim under 46 U.S.C. § 2114 on

the grounds that (1) Plaintiff cannot prove that he was discharged (Doc. 24, Br. at 7-8); (2) the

evidence fails to show that Defendant had knowledge that Plaintiff had called the Coast Guard (id.

at 8-11); and (3) Plaintiff’s report to the Coast Guard was not a good faith report of a violation of

a maritime safety law or regulation because the leak was “minor.” (Id. at 13.) Defendant also

moves for summary judgment on Plaintiff’s prayer for punitive damages, asserting that punitive

damages are not appropriate in this case. (Id. at 15.)

D. Motion Standards

Motions for summary judgment are governed by Rule 56(c) of the Federal Rules of Civil

Procedure, and will be granted when “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). All facts and
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inferences must be viewed in the light most favorable to the non-moving party. Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).

The moving party has the initial burden of showing the absence of a genuine issue of

material fact as to an essential element of the non-movant’s case. Street v. J.C. Bradford & Co.,

886 F.2d 1472, 1479 (6th Cir. 1989) (citing Celotex Corp. v Catrett, 477 U.S. 317, 106 S. Ct. 2548,

91 L. Ed. 2d 265 (1986)). In determining whether the moving party has met its considerable

burden, a court may consider the plausibility of the moving party’s evidence. Matsushita, 475 U.S.

at 587-88. Summary judgment is also proper where the moving party shows that the non-moving

party is unable to meet its burden of proof. Celotex, 477 U.S. at 326.

The non-moving party has an obligation to respond to the motion and present “significant

probative evidence” to show that “there is [more than] some metaphysical doubt as to the material

facts.” Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). The non-moving party

cannot rest merely on the pleadings alone. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106

S. Ct. 2505, 191 L. Ed. 2d 202 (1986).

After examining the evidence designated by the parties, the court then determines “‘whether

the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

one-sided that one party must prevail as a matter of law.’” Booker v. Brown & Williamson

Tobacco Co., 879 F.2d 1304, 1310 (6th Cir. 1989) (quoting Anderson, 477 U.S. at 251-52).

Summary judgment will not be granted “if the evidence is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. 
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E. Analysis & Conclusion

1. Adverse Employment Action

Defendant breaks down the Seaman’s Protection Act into three elements and argues that

it is entitled to summary judgment because the evidence is one-sided in its favor on each of the

three elements. Again, the Act provides that “[a] person may not [1] discharge or in any manner

discriminate against a seaman [2] because the seaman in good faith has reported or is about to

report to the Coast Guard . . . [3] that the seaman believes that a violation of a maritime safety law

or regulation prescribed under that law or regulation has occurred . . . .” 46 U.S.C. § 2114(a)(1)(A)

(emphasis added). Thus, Defendant’s first argument is that the evidence fails to show that Plaintiff

was discharged. In support of this argument, Defendant cites the following record evidence.

a. Plaintiff’s Deposition Testimony

Plaintiff testified at his deposition as follows:

[Plaintiff]: . . . [I] approached the chief engineer, and at that time he looked at me and he

said that the company requests that you leave the vessel.

Q: And what did you say at that point?

A: I said okay, it’s going to take me about 30 minutes to pack my belongings

and I’ll comply.

Q: Were you given the option at that point of staying onboard?

A: No. I was requested to depart the vessel.

Q: Did you ask if you were being fired?

A: No.

Q: Were you given any written termination notice?

A: No.

Q: Did you call the company to ask about employment status? 
1

At oral argument, the parties clarified that these “discharge papers,” which are not in the record, do not shed

any light on whether Plaintiff was fired or quit. The term “discharge” as used in this context simply means that

Plaintiff was about to exit the ship, and when a person exits the ship these papers are prepared so that there is always

an accurate record as to who is on board and so that each seaman’s time on the vessel is documented.

8

A: No. I was told to leave the vessel, which is equivalent to leaving the

workplace. I had six days left to serve on my hitch. I was scheduled to get

off the boat on vacation after my hitch in six days. It sounded like I was

fired. That’s what it sounded like to me.

Q: So what did you do next?

A: I went to my room and packed my gear and my seabag, my backpack.

(Plaintiff’s Dep., Doc. 24, Ex. 2 at 22-23.) Plaintiff stated that after he packed, he went to the

wheelhouse to get his discharge papers from the ship’s captain.1

 Plaintiff testified that

[t]he captain was in the wheelhouse. I asked him if he had my paperwork prepared.

He said it was in the chartroom. I said fine, signed it, and he said so you don’t feel

safe here. And I said no, I was asked to depart the vessel. And I told the captain at

that point in time, by the way, it was me who called the Coast Guard. And the

captain said we kind of figured that.

(Pl.’s Dep. at 23-24.) Plaintiff stated that his understanding was that he had been fired. (Id. at 24.)

The following day, Plaintiff called Defendant’s personnel manager (Mr. Turman) and asked about

his employment status. When Turman stated that Plaintiff had quit, Plaintiff responded, “I don’t

think so. I beg to differ.” (Id. at 37.) Plaintiff immediately thereafter called a union representative

to file a grievance and “to deal with it through the union.” (Id.) 

b. Peterson’s Deposition

Einar Peterson testified at follows at his deposition:

. . . I called him over, and I said, I would like to talk to you. I said I notified the

company about your concerns, I said, and they feel the same as I do, that if you are

not satisfied or you don’t feel safe, you are free to quit and leave the vessel before

we sail. And he said, I’ll talk to you later. He threw his hands up and went over to

the other side of the vessel.
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A little while later, he come back, maybe five or ten minutes later, I was

sitting on the hatch with the chief mate, and he stuck his finder in my face and he

said, tell the fucking captain – or tell the captain to get my fucking discharge ready,

I’m getting out of here, I’m getting off.

I turned to the chief mate, and I said, got your radio? He said, yeah. I said,

tell the captain to get his discharge ready, and he did. In the meantime, Polek

packed up and got ready to get off the vessel.

(Doc. 24, Ex. 3, Petersen Dep. at 41.)

c. Discussion

Defendant asserts that the evidence indicates that Plaintiff voluntarily quit his position and

is now trying to re-characterize it as a discharge. (Doc. 24, Br. in Supp. at 8.) As support,

Defendant points to the fact that Plaintiff admitted in his deposition that he was not given a written

termination letter. (Id.) Defendant also contends that Plaintiff would not have called the personnel

department and inquired as to his employment status if he believed that he had been fired.

Defendant further points to the testimony of the personnel manager, who stated that a replacement

crew member was not arranged for until after Plaintiff had left the vessel. (Id., citing Turman Dep.

at 48.) Finally, Defendant points to Peterson’s testimony that when Plaintiff was told he was free

to quit the vessel, Plaintiff’s response to was request that the Captain prepare his discharge. (Id.)

Plaintiff counters that there is ample evidence from which a trier of fact could reasonably

conclude that Plaintiff was fired. (Doc. 28, Br. at 7-8.) Plaintiff’s deposition testimony is that he

was asked to leave the vessel six days prior to the end of his “hitch” by Chief Petersen, and that

when he told Captain Brezinski he had been asked to leave the vessel, the Captain did not disagree

with this statement or indicate that Plaintiff was not terminated. Furthermore, the personnel

manager acknowledged in his deposition that when he had a phone conversation with Plaintiff the

day after he left the vessel, Plaintiff denied that he had quit. Plaintiff contends that numerous
10

courts have concluded that a difference of opinion concerning whether the plaintiff quit or was

discharged constitutes a genuine issue of material fact that precludes summary judgment in a

whistleblower case. 

I suggest that, in this case, a genuine dispute over a material issue of fact exists regarding

whether Plaintiff quit or was terminated. Plaintiff states that he was told to leave the vessel.

Plaintiff’s supervisor, Chief Peterson, states that Plaintiff quit. There were apparently no witnesses

to this conversation and neither party has pointed to any documentation that adds much weight to

their position. Plaintiff points out that Defendant did not contest his unemployment benefits, and

argues that this fact constitutes an acknowledgment – or at least powerful evidence – that he was

discharged, since employees who voluntarily quit are not entitled to unemployment compensation.

Defendant counters that there can be many reasons why a company would choose not to contest

a former employee’s unemployment claim, and that such a business decision cannot be considered

as evidence that Plaintiff was discharged. The Court agrees that it is not a conclusive fact, but

nevertheless a jury could find it as one more factor weighing in favor of Plaintiff’s version of

events. On a summary judgment motion, the Court is required to view all such facts and inferences

in the light most favorable to the non-moving party, which in this case is Plaintiff. Matsushita, 475

U.S. at 587. When doing so, it is clear that there is a genuine dispute over a material fact that

could be resolved by a jury in Plaintiff’s favor. Accordingly, I suggest that summary judgment on

the ground that Plaintiff cannot prove he was discharged is not appropriate.

2. Causation

The Seaman’s Protection Act prohibits adverse employment action taken against a seaman

“because the seaman in good faith has reported or is about to report to the Coast Guard . . .” a

safety violation. 46 U.S.C. § 2114 (emphasis added). Defendant next asserts that Plaintiff’s claim
11

fails and that it is entitled to summary judgment because, even if Plaintiff was discharged, Plaintiff

cannot prove that Defendant had knowledge that it was Plaintiff who reported the leak to the Coast

Guard and therefore Plaintiff cannot prove causation. (Doc. 24, Br. at 9.) Defendant’s argument

in this regard rests on several uncontested facts: Plaintiff asked the Coast Guard to keep his

complaint confidential; Plaintiff never told anyone on the ship that he contacted the Coast Guard

until after he received his discharge papers from Captain Brezinski and he told the captain that he

had been the one to contact them; Plaintiff discussed the leak with several other crew members,

any one of whom could have reported it to the Coast Guard; and Defendant’s key personnel

(Brezinski, Peterson, Wiltse, and Bouhall) all testified at their depositions that they did not know

it was Plaintiff who made the report to the Coast Guard until after Plaintiff informed the captain.

(Id. at 10-11.)

Plaintiff counters that he has come forward with ample evidence to show that Defendant

knew or at least strongly suspected that Plaintiff had been the one to report the hole in the vessel

to the Coast Guard. (Doc. 28, Br. at 12.)

I suggest that, even if it is true that many other crew members were aware of the leak and

could have notified the Coast Guard, Plaintiff has come forward with ample evidence indicating

that the only crew member Petersen, Brezinski, and Wiltse suspected was Plaintiff. The email

from Petersen on the morning in question demonstrates this:

I also told [Plaintiff] that people getting on the phone and telling others ashore such

nonsense, would potentially put the vessel’s (as well at their own) future usefulness

in jeopardy. All it would take it for someone to “drop a dime” to the Coast Guard,

and we would be tied up for an indefinite time while they investigated.

He is still not satisfied, and insists that his safety out here is paramount.
12

(Doc. 28 at Ex. C, emphasis added.) Petersen states in this email that he had warned Plaintiff that

his “future usefulness [was] in jeopardy” if he continued to mention the leak. Petersen also reveals

that, in his opinion, Plaintiff was still not satisfied with the “it’s not a problem” answer he had

received. The Court has no trouble concluding that a jury, after reading this email, could

reasonably come to the conclusion that Plaintiff was asked to leave the vessel because Petersen

believed that Plaintiff had reported or was about to report the leak to the Coast Guard.

Accordingly, I suggest that Defendant is not entitled to summary judgment on this basis. 

3. Good Faith Report

The Seaman’s Protection Act prohibits taking adverse employment action against a seaman

who “in good faith has reported or is about to report to the Coast Guard or other appropriate

Federal agency or department that the seaman believes that a violation of a maritime safety law

or regulation prescribed under that law or regulation has occurred . . . .” 46 U.S.C. §

2114(a)(1)(A). Defendant argues that it is entitled to summary judgment because Plaintiff’s report

to the Coast Guard was not a good faith report of a violation of a maritime safety law or regulation

because the leak was merely “minor.” (Doc. 24, Br. at 13.) Defendant points out that after the leak

was inspected by the Coast Guard, the vessel was permitted to depart Stoneport and the damage

was not required to be repaired until the vessel arrived at a Lake Erie port. (Id. at 13-14.)

Defendant also cites the deposition testimony of Engineering Superintendent John Hayes, who

stated that, in his “expert opinion,” “the extent of the damage as found when it was permanently

repaired at a Lake Erie port was such that it did not affect the seaworthiness of the vessel, and

therefore would not have required a report of a hazardous condition to the Coast Guard.” (Id. at

14.) 
13

Plaintiff counters by first pointing out that the plain language of the statute requires only

that the seaman have a good faith belief that a violation of maritime safety law or regulation has

occurred. (Doc. 28, Br. at 15.) Plaintiff also cites Gaffney, where the court stated: 

The legislative history of § 2114 indicates that Congress intended that the statute

provide protection to a plaintiff who honestly believed that there was a regulatory

violation, but who turned out to be incorrect.

Gaffney, 451 F.3d at 449 n.25 (citing Donovan v. Texaco, Inc., 720 F.2d 825 (5th Cir. 1983)). 

Plaintiff further points to the deposition testimony of Captain Brezinski and First Mate

Brouhall. When Captain Brezinski was asked about his conversation with the Coast Guard officers

who boarded the vessel to inspect it after Plaintiff had departed, Captain Brezinski acknowledged

that the officers told him he should have reported the crack in the hull himself:

Q: Did any of the [Coast Guard] officers ask you whether you had notified the Coast

Guard yourself?

A: It was brought up in the conversation, yeah. And then – well, I assumed that the

office would have contacted the people involved.

Q: And they told you that as the master, it is really your responsibility to notify them?

A: Yes.

Q: But you had erroneously thought that the office had already called the Coast Guard?

A: Yeah. Or ABS. 

(Brezinski Dep., Doc. 28, Ex. D at 41.) When First Mate Brouhall was asked whether the leak

was, in his opinion, a “reportable marine casualty,” and he answered:

Today at this time, yes, I was – I had, you know, the Coast Guard told us any time

you see something like that, report it, so yes.

(Brouhall Dep., Doc. 28, Ex. G at 54.)
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I suggest that the evidence clearly shows that Plaintiff honestly and in good faith believed

that a safety violation was occurring. That fact is not only supported by the deposition testimony

cited above, but also by the Peterson email where Chief Peterson states that Plaintiff “is still not

satisfied, and insists that his safety out here is paramount.” (Doc. 28 at Ex. C.) Whether the leak

subsequently was categorized as severe enough to meet the technical definition of “hazardous

condition” is irrelevant under Gaffney. Thus, because a factfinder could reasonably find in favor

of the non-movant on this issue, I suggest that summary judgment is inappropriate.

4. Punitive Damages

Defendant moves for summary judgment on Plaintiff’s prayer for punitive damages.

Defendant claims that punitive damages are not available under the Seaman’s Protection Act

because the Act omits any reference to them. (Doc. 24, Br. at 15.) Alternatively, Defendant states

that when punitive damages are awarded under 46 U.S.C. § 2114, they are only appropriate when

a defendant acted willfully and wantonly in discharging the plaintiff. (Id., citing Gaffney.)

Defendant asserts that the extensive discovery that has taken place in this case has uncovered no

support for a claim of retaliatory discharge, “let alone support for a finding that defendant’s actions

were so utterly outrageous that it would merit an award of punitive damages.” (Id. at 15-16.) 

Plaintiff responds that Defendant conceded at an earlier hearing on a motion to compel

discovery that punitive damages are recoverable in an action brought under 46 U.S.C. § 2114.

(Doc. 28, Br. at 17.) Next, Plaintiff points to the fact that every court that has addressed the issue

has held that punitive damages are available under § 2114 pursuant to the language of the statute

providing that “the court may order any appropriate relief, including” a restraining order,

reinstatement, back pay, costs, and attorney’s fees. 46 U.S.C. § 2114(b) (emphasis added). In

Gaffney, the Seventh Circuit reasoned that
15

in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117

L. Ed. 2d 208 (1992), the Supreme Court held that, as a general matter and “absent

clear direction to the contrary by Congress, the federal courts have the power to

award any appropriate relief in a cognizable cause of action brought pursuant to a

federal statute,” including compensatory and punitive damages. Id. at 70-71, 112

S. Ct. 1028 (emphasis added). In turn, when a statute explicitly makes available

“any appropriate relief,” referencing the broad power of the federal courts to award

both compensatory and punitive damages, we can infer that Congress intended

prevailing plaintiffs to recover compensatory and punitive remedies. This is true of

§ 2114 . . . .

Gaffney, 451 F.3d at 459. I thus suggest that punitive damages are available in an action brought

under § 2114.

As to Defendant’s assertion that, even if punitive damages are available in a Seaman’s Act

case, it is entitled to summary judgment on this issue because there is no evidence in the record

from which a jury could find that Defendant acted willfully or wantonly, Plaintiff responds by

pointing to evidence discussed above, such as the Petersen email describing Plaintiff as a “weenie,”

the Wiltse email characterizing Plaintiff’s safety concerns as the “nonsensical ravings of an

inexperienced junior engineer,” and the timing of Plaintiff’s exit from the ship – less than one hour

after the Coast Guard called Captain Brezinski to inform him that they had received word of a

crack in the hull and would be coming to inspect the vessel. (Doc. 28, Br. at 19-20.) Counsel for

Plaintiff argues that a reasonable jury could view these facts as evidence of a willful and wanton

retaliatory discharge. Viewing the evidence and inferences therefrom in the light most favorable

to Plaintiff, as the Court must at this juncture, I suggest that Plaintiff’s counsel is correct and that

Defendant’s motion for summary judgment on the prayer for punitive damages should be denied.
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III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil Procedure, “[w]ithin 14 days after

being served with a copy of the recommended disposition, a party may serve and file specific

written objections to the proposed findings and recommendations. A party may respond to another

party’s objections within 14 days after being served with a copy.” FED. R. CIV. P. 72(b)(2). See

also 28 U.S.C. § 636(b)(1). Failure to file specific objections constitutes a waiver of any further

right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Howard

v. Sec’y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638

F.2d 947 (6th Cir. 1981). The parties are advised that making some objections, but failing to raise

others, will not preserve all the objections a party may have to this Report and Recommendation.

Willis v. Sec’y of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit

Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR

72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

 s/ Charles` E Binder 

CHARLES E. BINDER 

Dated: November 30, 2010 United States Magistrate Judge

CERTIFICATION

I hereby certify that this Report and Recommendation was electronically filed on

November 30, 2010, and electronically served on counsel of record and U.S. District Judge

Ludington via the Court’s ECF system.

Dated: November 30, 2010 By s/Mimi D. Bartkowiak 

Law Clerk to Magistrate Judge Binder