Matthew Wilk v. State Bank ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW WILK, UNPUBLISHED
August 18, 2022
Plaintiff-Appellant,
v No. 357707
Wayne Circuit Court
THE STATE BANK and LC No. 20-11229-CD
RONALD JUSTICE,
Defendants-Appellees.
Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.
PER CURIAM.
Matthew Wilk worked as a commercial lender for The State Bank (TSB). TSB terminated
Wilk’s employment three weeks after he reported to his attorney that TSB had approved a
retroactive reduction of fee-share incentive payments from 10% to 5%. Wilk’s attorney threatened
to report TSB’s violation of the wages and fringe benefits act (WFBA), MCL 408.471, et seq. TSB
claimed that it had simply contemplated amending or modifying the terms of its incentive
compensation plan, but denied that any formal amendment or modification was made. TSB paid
Wilk his 10% fee-share payment and then terminated him two days later.
Wilk asserted a claim under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et
seq., and an alternative claim for wrongful discharge in violation of public policy. Wilk pleaded
that TSB’s decision to retroactively reduce the fee-share compensation was actually made,
approved, and already in effect. That is sufficient to state a WPA claim and survive summary
disposition under MCR 2.116(C)(8). While discovery may result in evidence that defendants did
not make any decisions or take any other acts to illegally reduce its employees pay prior to
plaintiff’s counsel’s letter, summary disposition is improper under MCR 2.116(C)(8) and
premature at this very early stage of litigation. Wilk has also sufficiently pleaded an alternative
public-policy claim for being discharged because he exercised his well-established rights afforded
under the WFBA. Accordingly, we reverse the trial court’s grant of summary disposition to
defendants on both of Wilk’s claims.
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I. BACKGROUND
Wilk was employed as a Vice President and Commercial Lender with TSB from July 2017
to July 2020. During his tenure with TSB, Wilk received positive annual reviews and did not
receive any negative feedback. Pursuant to the terms of a written incentive compensation plan,
Wilk was to be paid a 10% “fee share” of loan origination and renewal fees collected on Small
Business Administration (SBA) loans that he generated. This fee-share compensation was to be
paid “in the quarter following collection.”
In 2020, the federal government established the Paycheck Protection Program (PPP)
through the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). As a result, TSB
experienced a historic increase of SBA loan applications in the second quarter of 2020.1 After the
second quarter ended, TSB’s board of directors allegedly decided to retroactively reduce the fee-
share compensation from 10% to 5%. The reduction applied to SBA loans generated under the
PPP in the second quarter ending June 30, 2020. Wilk’s immediate supervisor informed him that
the board of directors had approved the retroactive reduction, which was announced in a July 2,
2020 email.2
Wilk reported to his attorney that TSB had decided to retroactively reducing the fee-share
compensation earned in the second quarter of 2020. On July 7, 2020, Wilk’s attorney sent a letter
to Ronald Justice, TSB’s President and Chief Executive Officer, informing him that TSB’s
reduction of the fee-share compensation constituted a violation of the WFBA. Wilk’s attorney
threatened to file a complaint with the Department of Licensing and Regulatory Affairs (LARA) 3
if Wilk was not paid the full 10% fee-share compensation that he earned in the second quarter. In
a July 27, 2020 letter to Wilk’s attorney, TSB’s counsel acknowledged that TSB contemplated
amending or modifying the terms of the incentive plan. But TSB’s counsel claimed that TSB had
“not made any formal amendment or modifications” to the incentive plan. On July 29, 2020, TSB
paid Wilk his full 10% fee-share earned during the second quarter. Two days later, TSB terminated
Wilk without explanation.
1
TSB allegedly collected nearly $7 million in fee revenue from SBA loans under the PPP in the
second quarter of 2020.
2
Wilk’s exhibits on appeal include a copy of the July 2, 2020 email from Craig L. Johnson, a
senior vice president and senior lender at TSB to a Thomas J. Barrett that discusses the reduced
fee-share. However, this exhibit was not attached to Wilk’s complaint. A motion under MCR
2.116(C)(8) must be decided on the pleadings alone. El-Khalil v Oakwood Healthcare, Inc, 504
Mich 152, 160; 934 NW2d 665 (2019). Wilk’s complaint specifically references the email and its
contents. For purposes of our review, we have only considered the allegations in the pleadings.
3
Wilk references LARA throughout his pleadings, which is consistent with the WFBA’s
definition. See MCL 408.471(a). However, we note that the Wage and Hourly Division is part of
the Department of Labor and Economic Opportunity (LEO), not LARA.
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Wilk filed suit alleging claims under the Bullard-Plawecki Employee Right to Know Act,
MCL 423.501, et seq., the WPA, and, alternatively, that his discharge was against public policy.4
In lieu of an answer to Wilk’s second amended complaint, defendants filed a motion for summary
disposition pursuant to MCR 2.116(C)(8). Defendants argued that TSB did not violate the law
because the proposed fee-share reduction was not actually implemented. Defendants also asserted
that the WPA preempted and precluded a public-policy claim. The trial court granted the motion.
This appeal followed.
II. STANDARD OF REVIEW
“We review de novo a trial court’s decision on a motion for summary disposition.” El-
Khalil, 504 Mich at 159. “A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim
based on the factual allegations in the complaint.” Id. (emphasis in original). “When considering
such a motion, a trial court must accept all factual allegations as true, deciding the motion on the
pleadings alone.” Id. at 160. “A motion under MCR 2.116(C)(8) may only be granted when a claim
is so clearly unenforceable that no factual development could possibly justify recovery.” Id.
“The interpretation and application of statutes, rules, and legal doctrines is reviewed de
novo.” Micheli v Mich Auto Ins Placement Facility, ___ Mich App ___, ___; ___ NW2d ___
(2022) (Docket No. 356559); slip op at 3.
III. WHISTLEBLOWERS’ PROTECTION ACT
Wilk argues that he sufficiently pleaded a WPA claim for TSB’s termination of his
employment after he reported TSB’s decision to retroactively reduce the fee-share compensation
in violation of the WFBA. We agree.
The WPA “protects an employee who has reported, or is about to report, a violation or
suspected violation of a law to a public body.” Pace v Edel-Harrelson, 499 Mich 1, 6; 878 NW2d
784 (2016). The goals of the WPA are “to protect the integrity of the law by removing barriers to
employee efforts to report violations of the law,” and “to protect the public by protecting
employees who report violations of laws and regulations.” Faulkner v Flowers, 206 Mich App
562, 568; 522 NW2d 700 (1994). Because the WPA is a remedial statute, it is to be liberally
construed to favor the persons the Legislature intended to benefit, specifically, those employees
engaged in protected activity. Chandler v Dowell Schlumberger Inc, 456 Mich 395, 406; 572
NW2d 210 (1998).5
4
The parties stipulated to the dismissal of the Bullard-Plawecki claim and Wilk was afforded leave
to amend his complaint with regard to his WPA and public policy claims.
5
“The principal goal of statutory interpretation is to give effect to the Legislature’s intent, and the
most reliable evidence of that intent is the plain language of the statute.” South Dearborn
Environmental Improvement Ass’n, Inc v Dep’t of Environmental Quality, 502 Mich 349, 360-
361; 917 NW2d 603 (2018). “Where the statutory language is unambiguous, the plain meaning
reflects the Legislature’s intent and the statute must be applied as written.” Honigman Miller
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MCL 15.362 provides:
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 . . . to a public body . . . .
“To establish a prima facie case under MCL 15.362, a plaintiff must show that (1) the plaintiff was
engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated
against, and (3) a causal connection exists between the protected activity and the discharge or
adverse employment action.” Pace, 499 Mich at 6 (quotation marks and citations omitted).
Here, our focus is on the first element – whether Wilk was engaged in “protected activity.”
“ ‘Protected activity’ under the WPA consists of (1) reporting to a public body a violation of a law,
regulation, or rule; (2) being about to report such a violation to a public body; or (3) being asked
by a public body to participate in an investigation.” Chandler v Dowell Schlumberger Inc, 456
Mich 395, 399; 572 NW2d 210 (1998). “Reporting a ‘suspected violation of a law’ is protected
activity” under the WPA. Debano-Griffin v Lake Co, 486 Mich 938; 782 NW2d 502 (2010)
(emphasis added). Wilk contends that he engaged in two types of protected activity: (1) he reported
TSB’s suspected violation of the WFBA to his licensed attorney,6 and (2) he notified TSB that he
was about to report the violation to the Wage and Hour Division. There is no dispute at to whether
Wilk “reported” to his attorney or was “about to report” to the department. Rather, defendants
argued, and the trial court agreed, that Wilk did not engage in “protected activity” under the WPA
because his claim was based on future, planned, or anticipated acts as opposed to a violation that
had already occurred.
Wilk’s complaint alleges in pertinent part that “[o]n July 2, 2020, the TSB announced its
decision to retroactively reduce the fee-share percentage that Commercial Lenders like Wilk
earned” and that Wilk’s supervisor informed him that the bank’s board of directors “had
‘approved’ a decision to retroactively reduce the fee-share percentage . . . from 10% to 5%.”
According to the complaint, the decision was already made. And the decision “set in motion the
accounting and other computations that were necessary to execute the illegal, lower fee-share
Schwartz & Cohn LLP v City of Detroit, 505 Mich 284, 294; 952 NW2d 358 (2020) (quotation
marks and citations omitted).
6
The parties do not dispute that Wilk’s attorney, as a Michigan-licensed attorney, is a “public
body” under the WPA. See MCL 15.361(d)(iv) (defining a “public body,” in relevant part as any
“body which is created by state or local authority or which is primarily funded by or through state
or local authority, or any member or employee of that body”); McNeil-Marks v Midmichigan Med
Ctr-Gratiot, 316 Mich App 1, 22-3; 891 NW2d 528 (2016) (holding that a private attorney, as a
member of the State Bar of Michigan, is a “public body” under the WPA).
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payments by July 29, 2020.” When considering a motion under MCR 2.116(C)(8), all factual
allegations in the complaint must be accepted as true. El-Khalil, 504 Mich at 160.
Accepting Wilk’s allegations as true, we conclude that he has sufficiently pleaded a WPA
claim. Wilk alleged that TSB’s board of directors approved the decision to retroactively reduce the
fee-share, which was communicated to TSB’s management and employees, including Wilk. Wilk
maintained that the retroactive reduction violated the WFBA. He reported the violation to his
attorney and was about to report the violation to the department.7 Wilk was fired almost
immediately after he reported the violation. Because he alleged that the decision had been made
and implemented, we conclude that he has sufficiently alleged “an act or conduct that has actually
occurred or is ongoing.” Pace, 499 Mich at 7.
Relying on Pace, TSB argues that the decision to cut the fee-share was not actually made,
so the WPA does not apply. But this is a motion under MCR 2.116(C)(8) and we must accept
Wilk’s allegations as true. We do not know whether and when the decision to cut commissions
was actually made; that can only be determined through discovery. Wilk pleaded that the decision
was actually made, approved, and was already in effect. That is sufficient to state a WPA claim
and survive summary disposition under MCR 2.116(C)(8).
We find Pace factually distinguishable. In Pace, the motion was brought under MCR
2.116(C)(10), discovery had taken place, and the plaintiff failed to produce evidence that any act
had taken place in furtherance of the allegedly planned illegal act. The only support that the
plaintiff offered was her own subjective belief that the manager planned to misuse funds. Pace,
499 Mich at 9-10. There was no indication in the record that the plaintiff had reported that the
manager had already misused the funds. Id. at 9. Conversely, in this case, Wilk reported to his
attorney that TSB’s board of directors had already made the decision to retroactively reduce the
fee-share compensation and that decision was communicated to TSB management personnel and
employees, including Wilk. This is a specific and concrete act in furtherance of the allegedly illegal
plan, i.e., TSB’s “approved” pay reduction as reflected in the July 2, 2020, email.
“While the lack of an allegation can be fatal under MCR 2.116(C)(8), the lack of evidence
in support of the allegation cannot.” El-Khalil, 504 Mich at 162 (emphasis added). Wilk alleged
that he was fired in retaliation for engaging in a protected activity. “That is enough to withstand
challenge under MCR 2.116(C)(8).” El-Khalil, 504 Mich at 162. “The relative strength of the
evidence offered by plaintiff and defendants will matter if the court is asked to decide whether the
record contains a genuine issue of material fact. But that is only a question under MCR
2.116(C)(10).” Id.
7
Wilk alleges that TSB’s decision to cut the fee-share from 10% to 5% was reversed because Wilk
threatened to sue for the WFBA violation. In other words, TSB refrained from following through
with its unlawful decision simply because it was warned by Wilk’s counsel.
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IV. PUBLIC POLICY
Alternatively, Wilk argues that, if TSB’s termination of his employment did not violate the
WPA, then he has sufficiently pleaded a public-policy claim for being discharged for exercising
his well-established rights afforded under the WFBA. We agree.
Generally, employment relationships are terminable at the will of either party for any or no
reason. Suchodolski v Mich Consol Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982);
Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 523; 854 NW2d 152 (2014). “However,
an exception has been recognized to that rule, based on the principle that some grounds for
discharging an employee are so contrary to public policy as to be actionable.” Suchodolski, 412
Mich at 695. Public policy is ordinarily manifested in legislative enactments. Id. There are three
recognized public policy exceptions to the at-will doctrine:
(1) the employee is discharged in violation of an explicit legislative statement
prohibiting discharge of employees who act in accordance with a statutory right or
duty; (2) the employee is discharged for the failure or refusal to violate the law in
the course of employment; or (3) the employee is discharged for exercising a right
conferred by a well-established legislative enactment.” [McNeil v Charlevoix Co,
484 Mich 69, 79; 772 NW2d 18 (2009). (citations omitted).]
If a statute explicitly prohibits a particular adverse employment action, then a public-policy
claim cannot be asserted because the statute is the exclusive remedy. Kimmelman v Heather Downs
Management Ltd, 278 Mich App 569, 573; 753 NW2d 265 (2008). It is well established that a
plaintiff may not bring a public policy claim for wrongful discharge if the plaintiff has an
actionable claim under the WPA. McNeil-Marks, 316 Mich App at 26. But “if the WPA does not
apply, it provides no remedy and there is no preemption.” Anzaldua v Neogen Corp, 292 Mich
App 626, 631; 808 NW2d 804 (2011). If Wilk successfully establishes a WPA claim, then his
public policy claim will evaporate. But Wilk is permitted to plead an alternative, inconsistent
claim. MCR 2.111(A)(2); AFSCME Council 25 v Faust Pub Library, 311 Mich App 449, 459; 875
NW2d 254 (2015).
Wilk argues that he can maintain a public-policy claim for exercising his statutory rights
under the WFBA because the WFBA does not have an applicable anti-retaliatory provision. The
WFBA’s anti-retaliatory provision provides as follows:
An employer shall not discharge an employee or discriminate against an employee
because the employee filed a complaint, instituted or caused to be instituted a
proceeding under or regulated by this act, testified or is about to testify in a
proceeding, or because of the exercise by the employee on behalf of an employee
or others of a right afforded by this act. [MCL 408.483(1).]
This Court has concluded that this anti-retaliatory provision applies only if an employee is
“exercising a right afforded by the act on behalf of another employee or other person. Simply
exercising a right on one’s own behalf would not bring an employee within the purview of [MCL
408.483].” Reo v Lane Bryant, Inc, 211 Mich App 364, 367; 536 NW2d 556 (1995) (emphasis in
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original). We do not agree with this interpretation, but we are bound by it.8 MCR 7.215(C)(2),
(J)(1). The letter sent by Wilk’s attorney to TSB threatened to file a claim with the department on
behalf of Wilks, not on behalf of other employees. Accordingly, WFBA’s anti-retaliatory provision
is not applicable.
Wilk alleges a third-prong public-policy claim, asserting that he was discharged for
exercising his rights under the WFBA. The WFBA “is remedial in that it provides a means to
enforce rights with respect to wages and fringe benefits and prescribes remedies for violations of
these rights.” Buckley v Professional Plaza Clinic Corp, 281 Mich App 224, 235; 761 NW2d 284
(2008). The textual title to WFBA describes its objective as follows:
AN ACT to regulate the time and manner of payment of wages and fringe benefits
to employees; to prescribe rights and responsibilities of employers and employees,
and the powers and duties of the department of labor; to require keeping of records;
to provide for settlement of disputes regarding wages and fringe benefits; to
prohibit certain practices by employers; to prescribe penalties and remedies; and to
repeal certain acts and parts of acts. [1978 PA 390, title.]
Wilk’s alleges that his fee-share compensation is either (1) “commission” and considered
“wages,” or (2) a “bonus” and considered “fringe benefits.” MCL 408.471 defines “fringe
benefits” and “wages” as follows:
(e) “Fringe benefits” means compensation due an employee pursuant to a written
contract or written policy for holiday, time off for sickness or injury, time off for
personal reasons or vacation, bonuses, authorized expenses incurred during the
course of employment, and contributions made on behalf of an employee.
(f) “Wages” means all earnings of an employee whether determined on the basis of
time, task, piece, commission, or other method of calculation for labor or services
except those defined as fringe benefits under subdivision (e) above.9
8
A panel of this Court previously concluded “that Reo was wrongly decided and that a conflict
panel should evaluate its reasoning and conclusions.” Ramos v Intercare Community Health
Network, 323 Mich App 136, 142; 916 NW2d 287 (2018). This Court declined to convene a special
panel to resolve the conflict. Ramos v Intercare Community Health Network, unpublished order of
the Court of Appeals, issued February 21, 2018 (Docket No. 335061). And the application for
leave to appeal to the Supreme Court was denied. Ramos v Intercare Community Health Network,
503 Mich 917; 920 NW2d 141 (2018).
9
The terms “bonus” and “commission” are not defined in the WFBA. But they are defined within
the wage and hour division administrative rules. “Commission” is defined as “all earnings of an
employee, in addition to the hourly rate of pay, which the employee has been led to expect on a
regular basis as a result of an employment contract, agreement, or promise.” Mich Admin Code,
R 408.701(c). “Bonus” is defined as “a premium or extra or irregular remuneration in addition to
wages that is awarded to an employee under a written contract or written policy.” Mich Admin
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Wilk’s alleges that he asserted his rights under MCL 408.472 MCL 408.473 by
“demanding to be paid the full 10% fee-share” when he “was paid at month-end July 2020.” MCL
408.472 requires an employer to pay an employee the the full amount of earned “wages” on the
scheduled payday. And MCL 408.473 provides that fringe benefits are distributable in accordance
with the terms of a contract or the employer’s written policy. Pursuant to clear and unambiguous
language of each of these statutes, employees have a right to timely (1) payment of the full amount
of earned “wages” on the scheduled payday, and/or (2) distribution of “fringe benefits” on the due
date.
Wilk alleged that he was discharged for exercising his right under the WFBA to the full
amount of wages earned and/or fringe benefits that he was entitled to by reporting TSB’s decision
to retroactively reduce the fee-share compensation. When a plaintiff alleges a third-prong public-
policy claim, “[i]t is irrelevant . . . whether [a] plaintiff reported an actual or alleged violation of
the law; that [a] plaintiff relies on the exercise of a right conferred by a well-established legislative
enactment . . . is sufficient.” Stegall v Resource Technology Corp, __ Mich __, __; __ NW2d __
(2022) (Docket No. 160495), slip op at 1. Accepting the factual allegations in Wilk’s complaint as
true, we conclude that he has sufficiently pleaded an alternative claim for wrongful discharge in
violation of public policy and the trial court erred by dismissing the claim.
V. CONCLUSION
We conclude that Wilk has sufficiently pleaded a WPA claim. We also conclude that Wilk
has sufficiently pleaded an alternative claim for wrongful discharge in violation of public policy.
Accordingly, we reverse the trial court’s grant of summary disposition to defendants on each of
these claims. We remand for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Douglas B. Shapiro
/s/ Sima G. Patel
Code, R 408.9002(2)(d). The complaint alleges that the fee-share compensation was part of TSB’s
Commercial Lender Incentive Plan. Because the express terms of the incentive plan are not
incorporated in the pleadings, we cannot determine whether the fee-share is a “bonus” or
“commission.” But we find that a specific designation is unnecessary for our analysis.
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