Whitley Apacanis v. Dominique Carter ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
WHITLEY APACANIS, UNPUBLISHED
December 20, 2018
Plaintiff-Appellant,
v No. 339241
Wayne Circuit Court
DOMINIQUE CARTER and SERVICES TO LC No. 16-008061-CD
ENHANCE POTENTIAL
Defendants-Appellees.
Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.
PER CURIAM.
Plaintiff, Whitley Apacanis, appeals the trial court’s order granting defendants,
Dominique Carter and Services to Enhance Potential (STEP), summary disposition of her claims
that, in suspending her from her job1 with STEP, defendants violated the Whistleblowers’
Protection Act (WPA), MCL 15.361, et seq., and that they retaliated against her in violation of
the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101 et seq. We affirm in part, reverse in
part, and remand for the reasons set forth in this opinion.
I. FACTS AND PROCEDURAL HISTORY
STEP is a private, nonprofit entity that contracts with the Detroit/Wayne County Mental
Health Authority (the Authority) to provide services to people who have mental health issues or
other disabilities. Plaintiff received job-training assistance from STEP. Carter, a STEP
employee who serves as a liaison between STEP “clients” like plaintiff and outside agencies,
described this as “on-the-job training” in which STEP clients would work in STEP’s workshop
assembling items piecemeal. STEP paid clients a small amount for this work.
One evening, plaintiff and another STEP client, Samuel Eiland, met at Eiland’s home and
engaged in a number of consensual sexual acts. Plaintiff alleges that at some point in the
evening, however, Eiland attempted an additional sexual act to which she did not consent, and
1
Although defendants assert that plaintiff is not actually a STEP employee, they also concede
that, for purposes of both the summary-disposition motion and this appeal, she was an employee.
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Eiland sexually assaulted her. It is undisputed that plaintiff reported the alleged sexual assault to
the police and to defendants, and that she also reported the assault to the circuit court by way of
her petition for a personal-protection order (PPO) against Eiland. The sexual interactions
happened in a private home outside of working hours, and plaintiff had not alleged any assaultive
behavior at work. Eiland was removed from STEP premises and suspended as a STEP client as
soon as defendants learned of plaintiff’s allegations. Importantly—and of special significance
for this case—the parties do not dispute that defendants also suspended plaintiff, and that the
cause for that suspension was plaintiff’s reporting of the alleged crime to the police and
obtaining a PPO. Indeed, defendants issued a written notice of suspension explicitly citing the
criminal charges against Eiland as the reason for the suspension: “The reason for this action is:
Consumer suspended from program until completion of pending criminal investigation.”
Nonetheless, the trial court granted defendants summary disposition with respect to all of
plaintiff’s claims on the ground that defendants were justified to do so because they also
suspended Eiland.2
II. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition.” Ensink v Mecosta Co Gen Hosp, 262 Mich. App. 518, 523; 687 NW2d 143 (2004).
“In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court
considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the
action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party
opposing the motion.” Ensink, 262 Mich. App. at 523, quoting Quinto v Cross & Peters Co, 451
Mich. 358, 362; 547 NW2d 314 (1996) (quotation marks omitted). Summary disposition under
MCR 2.116(C)(10) is appropriate “if the affidavits or other documentary evidence show that
there is no genuine issue in respect to any material fact, and the moving party is entitled to
judgment as a matter of law.” Ensink, 262 Mich. App. at 523, quoting Quinto, 451 Mich. at 362
(quotation marks omitted).
III. ANALYSIS
A. PLAINTIFF’S WPA CLAIM
The WPA prohibits employers from taking adverse employment actions against
employees who report violations of the law to a public body:
An employer shall not discharge, threaten, or otherwise discriminate against an
employee regarding the employee’s compensation, terms, conditions, location, or
privileges of employment because the employee, or a person acting on behalf of
the employee, reports or is about to report, verbally or in writing, a violation or a
suspected violation of a law or regulation or rule promulgated pursuant to law of
this state, a political subdivision of this state, or the United States to a public
2
On appeal, plaintiff has only raised issues with respect to the trial court’s rulings on her WPA
claim and her ELCRA retaliation claim.
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body, unless the employee knows that the report is false, or because an employee
is requested by a public body to participate in an investigation, hearing, or inquiry
held by that public body, or a court action. [MCL 15.362.]
A “public body” includes a law-enforcement officer or agency, and also the judiciary and its
members and employees. MCL 15.361(d)(v) and (d)(vi).
Plaintiffs may establish a prima facie case under the WPA by showing “(1) the plaintiff
was engaged in protected activity as defined by the act, (2) the defendant took an adverse
employment action against the plaintiff, and (3) ‘a causal connection exists between the
protected activity’ and the adverse employment action.” Debano-Griffin v Lake Co, 493 Mich.
167, 175; 828 NW2d 634 (2013), quoting Chandler v Dowell Schlumberger Inc, 456 Mich. 395,
399; 572 NW2d 210 (1998). Contrary to defendants’ apparent position, an “adverse employment
action” is not limited to termination but instead includes “discharg[ing], threaten[ing], or
otherwise discriminat[ing]” against a plaintiff. MCL 15.362. In Millar v Constr Code Auth, 501
Mich. 233, 240; 912 NW2d 521 (2018), for example, the plaintiff was not fired; instead, his
“employment responsibilities were merely reduced.” Further, “the violation or suspected
violation at issue need not be one committed by the employer or one of the plaintiff’s coworkers;
rather, the scope of the WPA is ‘broad enough to cover violations of the law by a third person.’ ”
McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316 Mich. App. 1, 17; 891 NW2d 528 (2016),
quoting Chandler, 456 Mich. at 404.
“To establish a prima facie case, a plaintiff can rely on either direct evidence of
retaliation or indirect evidence.” McNeill-Marks, 316 Mich. App. at 17. “If the plaintiff
establishes a prima facie case, a presumption of retaliation arises, which the employer can rebut
by offering ‘a legitimate reason for its action . . . .’ ” Id. at 17-18, quoting Debano-Griffin, 493
Mich. at 176. In other words, when a plaintiff makes a prima facie WPA claim, a defendant
employer must be able to “otherwise justify the adverse employment action” by showing that
there was some reason for it other than the WPA-protected conduct. Debano-Griffin, 493 Mich.
at 176.
In this case, there was direct evidence of retaliation. Plaintiff reported a violation of law
to the police, she was suspended by defendants for making the report, and defendants admit that
the suspension was directly linked to making the report. Even if there was no direct evidence of
retaliation, a prima facie case is just as easily established: the parties do not dispute that plaintiff
was engaged in a “protected activity” (reporting an alleged violation of the law to a “public
body”—the police and the court that granted plaintiff a PPO), and defendants explicitly stated
that they suspended plaintiff as a result of the criminal investigation prompted by her police
report. Defendants do not claim that there is some other reason, unrelated to her report to police,
that led them to suspend her. Instead, defendants assert, essentially, that the suspension was not
an adverse employment action because they eventually offered to reinstate plaintiff. However,
there can be no dispute that for a period of several weeks plaintiff was suspended, and therefore
prevented from receiving services and earning pay from STEP, and that her suspension was
based solely on her decision to report Eiland and his alleged sexual assault of plaintiff to police.
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Defendants also claim that, although they suspended plaintiff for initiating a criminal
investigation against Eiland, that suspension was justified because STEP officials consulted with
the Detroit/Wayne County Mental Health Authority, which allegedly informed them that sections
of the state mental health code required defendants to treat plaintiff and Eiland the same—either
to refrain from punishing both or to punish both equally—because both were recipients of mental
health services from STEP. Defendants have provided no citation to any authority that supports
the proposition that the victim of an alleged crime should be treated exactly the same as the
alleged perpetrator.3 “[A party] may not merely announce its position or assert an error and
leave it to this Court to discover and rationalize the basis for its claims, unravel or elaborate its
argument, or search for authority for its position.” Wiley v Henry Ford Cottage Hosp, 257 Mich
App 488, 499; 668 NW2d 402 (2003).
Likewise, the plain language of the WPA offers only one exception to its prohibition
against taking an adverse employment action as retaliation for otherwise protected conduct: if the
employee knowingly makes a false report about the alleged violation of law.4 There is not, as
defendants seem to believe, an exception granted for employers who feel they can justify
conduct that otherwise violates the WPA. Here, because the undisputed evidence on this record
satisfies all of the elements of a prima facie case that defendants violated the WPA, it was
improper for the trial court to grant defendants summary disposition.
B. PLAINTIFF’S ELCRA CLAIM
The ELCRA prohibits retaliation against someone for opposing a violation of the ELCRA
or for making a complaint or assisting an investigation about an alleged violation of the statute:
Two or more persons shall not conspire to, or a person shall not:
(a) Retaliate or discriminate against a person because the person has
opposed a violation of this act, or because the person has made a
charge, filed a complaint, testified, assisted, or participated in an
investigation, proceeding, or hearing under this act. [MCL
37.2701(a).]
3
The written suspension form sent to plaintiff cited federal regulation, 42 CFR 440.230(d), and
the Michigan Medicaid Provider Manual, Chapter 3, as the legal basis for suspending plaintiff,
but our review of those sources provides no support for plaintiff’s suspension for reporting a
crime allegedly committed by Eiland. According to 42 CFR 440.230(d), “The agency may place
appropriate limits on a service based on such criteria as medical necessity or on utilization
control procedures.” No specific provision of the manual has been provided that would support
defendants’ position.
4
There is no evidence or allegation here that plaintiff’s report was false, knowingly or otherwise.
-4-
A plaintiff must establish the following to make a prima facie ELCRA retaliation claim:
“(1) that he engaged in a protected activity; (2) that this was known by the
defendant; (3) that the defendant took an employment action adverse to the
plaintiff; and (4) that there was a causal connection between the protected activity
and the adverse employment action.” [Garg v Macomb Co Community Mental
Health Servs, 472 Mich. 263, 273; 696 NW2d 646 (2005), quoting DeFlaviis v
Lord & Taylor, Inc, 223 Mich. App. 432, 436; 566 NW2d 661 (1997).]
In reviewing an ELCRA retaliation claim, the issue is not whether the defendant generally
retaliated against the plaintiff improperly, but rather “the issue is whether defendant retaliated
against plaintiff specifically for conduct on her part protected by the Civil Rights Act.” Garg,
472 Mich. at 272.
Here, while the record is clear that defendants retaliated against plaintiff in violation of
the WPA for making a police report and filing for a PPO, the record also shows no evidence that
plaintiff’s suspension was connected in any way to her attempting to file a complaint or assert
her rights under the ELCRA. The alleged sexual assault occurred offsite, outside of working
hours, and there is no evidence that STEP played any role in Eiland’s alleged actions. In fact,
they removed Eiland from their premises as soon as they became aware of plaintiff’s allegations.
As such, plaintiff has failed to raise a question of fact on this issue, and the trial court properly
granted summary disposition in defendants’ favor.
C. CLAIMS AGAINST CARTER
Defendants asserted, and the trial court agreed, that Carter was separately entitled to
summary disposition because the director of the STEP facility where plaintiff worked stated in
an affidavit that it was she, not Carter, who made the decision to suspend plaintiff. However,
while the trial court concluded that plaintiff submitted no evidence to contradict this statement,
the record shows that both parties submitted evidence that does, in fact, contradict the director’s
affidavit. The written suspension notice STEP issued plaintiff indicates that Carter was the
“decision maker” and Carter signed the form in that capacity. This, at a minimum, establishes a
question of fact with respect to Carter’s role in plaintiff’s suspension. Accordingly, she is not
entitled to summary disposition with respect to plaintiff’s WPA claim. 5
IV. CONCLUSION
We reverse the trial court’s order granting defendants’ motion for summary disposition to
the extent it applies to plaintiff’s WPA claim and to the extent it concludes that Carter is
separately entitled to summary disposition because she was, as a matter of law, not involved in
suspending plaintiff. We remand for resolution of the question of fact regarding Carter’s
involvement in plaintiff’s suspension and for entry of an order granting plaintiff summary
5
Carter is, however, entitled to summary disposition on the remaining claims for the reasons set
forth in the previous section.
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disposition against STEP with respect to her WPA claim. In all other respects, we affirm. We
do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron
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