Rose Mary Schuessler v. Roman Catholic Diocese of Grand Rapids ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
ROSE MARY SCHUESSLER, UNPUBLISHED
June 20, 2017
Plaintiff-Appellant,
v No. 331985
Kent Circuit Court
ROMAN CATHOLIC DIOCESE OF GRAND LC No. 15-002064-NZ
RAPIDS, HOLY CROSS CEMETERY,
CATHOLIC CEMETERIES EXTENDED CARE
FUND, REVEREND DAVID JOHN
WALKOWIAK, and T. EDWARD CAREY, JR.,
Defendants-Appellees.
Before: SWARTZLE, P.J., and SAAD and O’CONNELL, JJ.
PER CURIAM.
Plaintiff, Rose Mary Schuessler, appeals as of right the order of the Kent Circuit Court
granting summary disposition in favor of defendants, Roman Catholic Diocese of Grand Rapids,
Holy Cross Cemetery, Catholic Cemeteries Extended Care Fund, Reverend David John
Walkowiak, and T. Edward Carey, Jr, and dismissing plaintiff’s Whistleblowers’ Protection Act
(WPA) and related public policy claims. The trial court concluded that plaintiff failed to
establish a prima facie case for the WPA claim and that the WPA preempted plaintiff’s public
policy claim arising out of the same facts. We affirm.
Plaintiff began working for the diocesan cemeteries in 2006 as a family service
counselor. In 2014, plaintiff began to suspect a fellow employee, Michael Wawee, of
embezzling money and otherwise stealing from the diocesan cemetery. Plaintiff reported this
suspicion to her supervisors and to police, and assisted in the prosecutor’s investigation of
Wawee. Wawee was criminally charged for his conduct. Shortly after Wawee pleaded no
contest to charges of embezzlement and false pretenses,1 the diocesan cemetery hired Wawee’s
uncle, James Arsulowicz, as Director of Cemeteries. Arsuolowicz fired plaintiff shortly after he
took over, after he was informed of a conversation—occurring at the cemetery during working
hours—during which plaintiff referred to her coworkers as “bitches.” Shortly thereafter,
1
Wawee was sentenced to a one-year term of imprisonment with substantial restitution.
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Arsuolowicz fired the remaining family service counselors as part of a planned elimination of
that position.
Plaintiff filed suit and raised several claims: violation of the WPA, MCL 15.361 et seq.;
wrongful termination in violation of Michigan public policy; breach of implied contract;
intentional infliction of emotional distress (IIED); and civil conspiracy. Plaintiff eventually
stipulated to dismiss her IIED claim. After defendants moved for summary disposition, plaintiff
expressly abandoned her implied contract claim, and the trial court granted summary disposition
to defendants under MCR 2.116(C)(10) on the WPA, public policy, and civil conspiracy claims.
On appeal, plaintiff argues that the trial court erred in granting summary disposition in favor of
defendants regarding her WPA claim and public policy claim. Plaintiff does not challenge
summary disposition on the civil conspiracy claim.
We review de novo the trial court’s grant of summary disposition, including its
conclusions that plaintiff failed to establish a prima facie case under the WPA and that the WPA
preempted plaintiff’s public policy claims. Hays v Lutheran Social Servs of Mich, 300 Mich
App 54, 58-59; 832 NW2d 433 (2013). When reviewing a motion for summary disposition
under MCR 2.116(C)(10), this Court considers “the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton
Malow Co, 480 Mich. 105, 111; 746 NW2d 868 (2008). “Summary disposition is appropriate if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law.” Id.
The WPA is designed to promote “public health and safety” and was enacted to
encourage employees to assist law enforcement investigations into illegal conduct occurring at
the workplace. Dolan v Continental Airlines/Continental Express, 454 Mich. 373, 378; 563
NW2d 23 (1997). “The act meets this objective by protecting the whistleblowing employee and
by removing barriers that may interdict employee efforts to report violations or suspected
violations of the law.” Id. at 378-379. “The WPA provides the exclusive remedy for [a]
retaliatory discharge and consequently preempts common-law public-policy claims arising from
the same activity.” Anzaldua v Neogen Corp, 292 Mich. App. 626, 631; 808 NW2d 804 (2011).
Here, plaintiff’s public policy claim was based on her allegation that she was discharged
as retaliation for reporting Wawee’s unlawful conduct.2 Because plaintiff’s public policy claim
arises out of the reporting activity protected by the WPA, the WPA was her exclusive remedy,
2
We note that, within the public policy claim in the complaint, plaintiff also alleged that she was
discharged “in whole or in part for refusing to participate in the fraud, waste, and/or abuse taking
place in her place of employment and with regard to her employment.” Plaintiff does not argue
on appeal, however, that this refusal is why the public policy claim should stand in addition to
the WPA claim. Further, even if we were to consider such an argument, plaintiff failed to
provide evidentiary support for the notion that defendants wished for her to engage in unlawful
activity.
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and preempts her public policy claim. See Dolan, 454 Mich. at 383. Accordingly, the trial court
properly granted summary disposition to defendants on plaintiff’s public policy claim.
With respect to the WPA claim itself, plaintiff bore the burden of establishing a prima
facie case of unlawful retaliation for protected conduct. Hays, 300 Mich. App. at 58-59. To meet
this burden, plaintiff was required to show: “(1) [she] was engaged in protected activity as
defined by the act, (2) [she] suffered an adverse employment action, and (3) a causal connection
exists between the protected activity and the adverse employment action.” Whitman v Burton,
493 Mich. 303, 313; 831 NW2d 223 (2013). The parties do not dispute that Plaintiff met her
burden regarding the first two elements and causation is the only element at issue.
“Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or
her employer’s unlawful motivations to show that a causal link exists between the
whistleblowing act and the employer’s adverse employment action.” Debano-Griffin v Lake Co,
493 Mich. 167, 176; 828 NW2d 634 (2013). When there is no direct evidence of causation, as in
this case, courts apply the burden-shifting framework set forth in McDonnell Douglas Corp v
Green, 411 U.S. 792; 93 S. Ct. 1817; 36 L. Ed. 2d 668 (1973). Debano-Griffin, 493 Mich. at 176.
Under the first step of this framework, “plaintiff may present a rebuttable prima facie case on the
basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful
retaliation.” Id. (internal quotation notation and citation omitted). If the “plaintiff establishes a
prima facie case, a presumption of retaliation arises.” Id. (internal quotation notation and
citation omitted). To rebut this presumption, defendant bears the burden of showing a legitimate
reason for the adverse employment action. Id. Upon such a showing, the burden shifts back to
plaintiff “to show that a reasonable fact-finder could still conclude that the plaintiff’s protected
activity was a motivating factor for the employer’s adverse action.” Id. (internal quotation marks
and citation omitted). To survive summary disposition, “plaintiff must not merely raise a triable
issue that the employer’s proffered reason was pretextual, but that it was a pretext for [unlawful
retaliation].” Id. (internal quotation marks and citation omitted). Defendant is entitled to
summary disposition if plaintiff fails to meet either of her burdens.
Here, plaintiff alleged that she worked for the diocesan cemeteries since 2006, that she
reported unlawful activity regarding a fellow employee, Wawee, to a public body, and that her
employment was terminated soon after the diocese hired Wawee’s uncle, Arsulowicz. Primarily,
plaintiff argues that the temporal nexus between her termination and Arsulowicz’s hiring, in
combination with the familial relationship, demonstrates a causal connection between her
protected WPA activity and her termination. We disagree.
Regarding the timing of plaintiff’s termination, “a temporal relationship, standing alone,
does not demonstrate a causal connection between the protected activity and any adverse
employment action” West v General Motors Corp, 469 Mich. 177, 186; 665 NW2d 468 (2003).
“Something more than a temporal connection between protected conduct and an adverse
employment action is required to show causation where [unlawful] retaliation is claimed.” Id.
While, in the run of the mill case, a family relationship may be sufficient to support an
inference of unlawful retaliation, the familial relationship in this case is insufficient to infer
causation. Arsulowicz’s deposition testimony and affidavit indicated that he was not close with
Wawee, that he did not spend a lot of time or socialize with Wawee, and that he had very little
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contact with Wawee over the past few years. Additionally, Arsuolowicz testified that he
believed that plaintiff played only an occasional role in the investigation and that another
employee, Angela Yondo, was hired specifically to assist Andrea Krause, the prosecuting
attorney in the Wawee case. For her part, Krause confirmed that Yondo played a “key role” in
the investigation. Despite Yondo’s prominent role in the investigation, Arsuolowicz did not fire
her, and no party has produced any evidence that indicates that Arsuolowicz showed Yondo any
ill will. Moreover, Krause indicated that the investigative team had already discovered evidence
of Wawee’s wrongdoing before receiving any additional assistance from plaintiff. Accordingly,
we find the familial relationship insufficient for a reasonable factfinder to conclude that
plaintiff’s termination was a result of any unlawful retaliation for participation in the
investigation of Wawee’s unlawful conduct.
Turning to plaintiff’s additional support for her prima facie case, plaintiff alleged that (1)
Arzulowicz protected Mary Beth Rothenthaler, an employee plaintiff alleges assisted Wawee’s
unlawful conduct, (2) defendants failed to take action against a second employee, Allen Van
Maastricht, despite his involvement in the conversation leading to plaintiff’s termination, and (3)
Arzulowicz promoted his nephew, Anthony Smith, despite Smith’s involvement with Wawee’s
unlawful activity. Plaintiff, however, provided insufficient evidentiary support to establish these
facts or to otherwise infer causation.
With respect to Rothenthaler, Plaintiff alleged that she was fired, in part, because she
criticized Rothenthaler for impeding the investigation. Plaintiff further alleged that Rothenthaler
knew of Wawee’s misconduct, and affirmatively assisted that misconduct. Krause, however,
testified that her team interviewed Rothenthaler and did not determine that she was engaged in
any wrongdoing, otherwise knew of Wawee’s misconduct, or impeded the investigation in any
manner. Plaintiff’s speculation and conjecture regarding Rotenthaler’s alleged impropriety,
without evidentiary support, is insufficient to create a triable issue of fact and insufficient to meet
her burden of establishing a prima facie case of unlawful retaliation. See Libralter Plastics, Inc v
Chubb Group of Ins Cos, 199 Mich. App. 482, 486; 502 NW2d 742 (1993)
Next, plaintiff alleged that defendants failed to fire Van Maastricht immediately, despite
his involvement in the conversation precipitating plaintiff’s termination. Plaintiff contends that
this different treatment is sufficient for a reasonable factfinder to support an inference of
unlawful retaliation sufficient to establish her prima facie case. While the record does indicate
that Van Maastricht may have been present for the conversation in which plaintiff referred to
other employees as “bitches,” there is no evidence indicating that Van Maastricht used such
language or otherwise acted unprofessionally. Accordingly, that defendants did not immediately
fire Van Maastricht—who was terminated several weeks later with the elimination of the family
service counselor position—does not support an inference that defendants engaged in unlawful
retaliation.
Finally, with respect to Smith, while the record shows that Smith did engage in some
impropriety, plaintiff provided no evidence to show that Arsulowicz had knowledge of Smith’s
impropriety. This lack of evidence is fatal to plaintiff’s final attempt to establish a rebuttable
presumption of unlawful retaliation.
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Viewing the evidence submitted by the parties in a light most favorable to plaintiff, a
reasonable factfinder could not infer that plaintiff’s termination was the result of defendants’
unlawful retaliation for plaintiff’s participation in the Wawee case. See Debano-Griffin, 493
Mich. at 176. For this reason, we conclude that the trial court properly granted summary
disposition to defendants under MCR 2.116(C)(10).
Finally, we note that, even had plaintiff met her initial burden to establish a rebuttable
presumption of discrimination, defendants offered a legitimate, non-retaliatory reason for
plaintiff’s termination in that plaintiff’s termination was part of a planned elimination of the
family service counselor position and that plaintiff’s unprofessional conduct accelerated that
termination by a few weeks. The record supports these assertions and plaintiff has provided no
evidence sufficient for a reasonable factfinder to conclude that defendants’ proffered reason for
plaintiff’s termination was a pretext for unlawful retaliation.
Affirmed.
/s/ Brock A. Swartzle
/s/ Henry William Saad
/s/ Peter D. O'Connell
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