Michele Campbell v. G4S Secure Solutions (USA) IN

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0279n.06
Case No. 15-2121
FILED
UNITED STATES COURT OF APPEALS May 23, 2016
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
MICHELE CAMPBELL, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
G4S SECURE SOLUTIONS (USA) INC., ) MICHIGAN
)
Defendant-Appellee. )
BEFORE: BOGGS, ROGERS, and STRANCH, Circuit Judges.
BOGGS, Circuit Judge. G4S Secure Solutions fired Michele Campbell in June 2013.
Several months earlier, Campbell had reported to her supervisor that two G4S employees (one
the son of a manager for a major client) had been falsifying reports. Convinced that she was
terminated for reporting on the manager’s son, Campbell filed suit against G4S for violating
Michigan’s Whistleblowers’ Protection Act (WPA). The district court granted summary
judgment to G4S because Campbell did not present clear and convincing evidence that she was
about to report the alleged violations to a public body. We agree and affirm the judgment.
I
General Motors (GM) hires contractors to manage fire safety and prevention at various
sites. One such contractor, G4S Secure Solutions, hired Michele Campbell as a fire chief to
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oversee compliance and inspection at a GM facility in Milford, Michigan. In that role, Campbell
reported to James Krumbach and managed the fire officers who inspected the facility.
In January 2013, Campbell shared with Krumbach her suspicion that two fire officers,
Chad Webster and Michael Stevenson, were falsifying reports to hide their shirking of inspection
duties. At the time, Webster’s mother, Beth Webster, was a quality-assurance manager for GM.
Krumbach told Campbell to explore further and report back. In March 2013, Campbell gave
Krumbach a document summarizing her conclusion that Webster and Stevenson had falsified
reports along with copies of their inspection and attendance logs. Krumbach told Campbell that
he would handle things from there. Campbell was aware that Krumbach discussed the matter
with his supervisor and planned to speak with Beth Webster specifically about her son’s
performance.
In May 2013, before the issue was resolved, Krumbach was hired by GM and Gail Pyne
filled his former position with G4S. Pyne had known Beth Webster for nearly twenty years and
sometimes socialized with her. Shortly after replacing Krumbach, Pyne learned of what was said
to be “a special supervisor attendance/time off policy.” Further investigation revealed that with
Krumbach’s support, Campbell had devised and implemented a more favorable attendance
policy for G4S supervisors “[b]ecause the supervisors didn’t get a raise.” Pyne questioned
Campbell, who admitted instructing fellow supervisors “to keep [the policy] quiet and not
discuss it” with subordinates. On May 22, 2013, Pyne submitted a report of her findings to her
supervisor, Operations Manager Donald Drent, and recommended removing Campbell from the
GM account. After consulting with the G4S Human Resources Department and several
colleagues in management, Drent agreed. Campbell was informed of the decision on May 30,
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2013. On June 8, 2013, G4S discharged Campbell because “no other positions at her level,
within the regional area, were available.”
Campbell filed suit, alleging that G4S violated the WPA, Mich. Comp. Laws § 15.361 et
seq. The complaint claimed that Campbell was fired because she told her supervisors “that she
felt obligated” to report Webster’s violations to the federal Occupational Safety and Health
Administration (OSHA) and the Michigan Occupational Safety and Health Administration
(MIOSHA). Campbell described that plan in her deposition testimony:
Q. Have you ever made any complaint to OSHA or [MIOSHA]?
A. No, but I was going to report it. I was about to report the findings that I
investigated on Chad Webster.
Q. So you’ve never made any complaint to OSHA or [MIOSHA]?
A. I did not physically file anything, no, but I was going to report.
Q. When you say you were going to report, do you know where you would
report to?
A. To [MIOSHA].
Q. How would you do that?
A. I don’t know. I’d have to investigate. I was investigating on how to do it
after I brought my investigation to Jim Krumbach, my supervisor, about
the findings of Chad Webster, who did not do his job.
***
Q. And am I also correct that you never told Krumbach that you were going
to go to [MIOSHA] or OSHA with any of this information?
A. No. I reported it to him and he said he was going to take care of it, and
then when he left, that’s when I was looking into I needed to report this
[sic], because they didn’t do their job.
Q. But you never told anyone that you were thinking about reporting it, did
you?
A. No, I did not tell anybody, but I was going to report it.
After discovery, G4S moved for summary judgment. The district court granted the motion,
reasoning that Campbell did not establish the first element of a prima facie retaliation claim
because she failed to show that she engaged in a protected activity under the WPA. The district
court went on to note that, even if she had, her claim would still fail because she did not
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established a causal connection between protected activity and her firing or show that G4S’s
stated reason for firing her was a pretext for the discharge. Campbell appealed on each ground.
II
This court reviews a district court’s grant of summary judgment de novo. Watson v.
Cartee, 817 F.3d 299, 302 (6th Cir. 2016). Summary judgment is appropriate when the record
shows no genuine dispute of material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a), (c). If a “reasonable jury” could decide in favor of the
nonmoving party, the dispute about material fact is genuine and summary judgment is
unwarranted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We view the evidence
and draw all reasonable inferences in favor of the nonmoving party. Rocheleau v. Elder Living
Const., LLC, 814 F.3d 398, 400 (6th Cir. 2016).
The WPA provides in relevant part:
An employer shall not discharge . . . an employee . . . 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 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.
Mich. Comp. Laws § 15.362. Michigan courts apply a burden-shifting framework to WPA
claims. Debano-Griffin v. Lake County, 828 N.W.2d 634, 638 (Mich. 2013) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). If the plaintiff proves a prima facie WPA case,
the burden shifts to the defendant to show a “legitimate business reason” for the discharge.
Taylor v. Modern Eng’g, Inc., 653 N.W.2d 625, 628 (Mich. Ct. App. 2002). If the defendant
makes that showing, the burden shifts back to the plaintiff to prove that the legitimate reason was
a pretext for the discharge. Ibid.4
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To make a prima facie case, Campbell must show that (1) she was engaged in an activity
protected by the WPA, (2) G4S fired her, and (3) there is a causal connection between those
actions. Debano-Griffin, 828 N.W.2d at 638. We agree with the district court that this case can
be resolved in favor of G4S on the first element.
The WPA protects employees who report a violation to a public body, are about to report
a violation to a public body, or are asked by a public body to participate in an investigation.
Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210, 212 (Mich. 1998). Campbell argues
that she was about to report Webster’s and Stevenson’s conduct to OSHA and MIOSHA. The
further an employee is from actually reporting the alleged violation to a public body, the less
protection the WPA provides. Shallal v. Catholic Soc. Servs. of Wayne Cty., 566 N.W.2d 571,
576 (Mich. 1997). In Shallal, Michigan’s highest court examined the dictionary definition of
“about” and seemed to imply that an employee “about to report” a violation must be “on the
verge of” doing so. 566 N.W.2d at 575; see also id. at 581 (Kelly, J., concurring in part and
dissenting in part). Subsequent courts have also required that plaintiffs bringing about-to-report
WPA claims be “on the verge” of reporting. See, e.g., Briggs v. Univ. of Detroit-Mercy, 22 F.
Supp. 3d 798, 805–06 (E.D. Mich. 2014); Jennings v. County of Washtenaw, 475 F. Supp. 2d
692, 711 (E.D. Mich. 2007); Trosien v. Bay County, No. 257363, 2005 WL 3505746, at *3
(Mich. Ct. App. Dec. 22, 2005) (per curiam); Richards v. Metron Integrated Health Sys.,
No. 242502, 2004 WL 443991, at *1 (Mich. Ct. App. Mar. 11, 2004) (per curiam).
The WPA imposes the heightened “clear and convincing evidence” standard of proof on
plaintiffs who proceed on the theory that they were about to report a violation. Mich. Comp.
Laws § 15.363(4); see also Shallal, 566 N.W.2d at 575. It is “the most demanding standard
applied in civil cases.” In re Martin, 538 N.W.2d 399, 410 (Mich. 1995). The plaintiff must
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“produce[] in the mind of the trier of fact a firm belief or conviction” regarding the allegations’
truth; that is, “a clear conviction, without hesitancy, of the truth of the precise facts in issue.”
Ibid. (citation omitted).
No reasonable jury could find by clear and convincing evidence that Campbell was about
to report Webster’s and Stevenson’s conduct to a public body. In her complaint, Campbell
alleged that she “told her [s]upervisors that she felt obligated to report the violations to the State
of Michigan Department of Labor and . . . OSHA” and that “she threatened to go to legal
authorities to report [Webster’s] actions.” But her deposition testimony tells a different story.
Campbell admitted that before G4S discharged her, she visited the OSHA and MIOSHA
websites but had not investigated how to report a violation because Krumbach “was going to
take care of it.” As Campbell attested, she had not “t[old] anybody” of her plan. The only
evidence that Campbell was about to report the alleged violations is her own deposition
testimony to that effect.1 See R. 20-3 at 615 (“I was going to report it.”). Merely telling a
superior of an alleged violation and testifying to having visited a regulatory agency’s website and
intending to later report the violation do not clearly and convincingly demonstrate that an
employee was about to report.
Campbell points to no case where the first element of an about-to-report WPA claim
rested on such scant evidence. Both cases that Campbell cites contain far more compelling
evidence of a plaintiff who is on the verge of reporting a violation. The Shallal plaintiff told her
supervisor, “[I]f you don’t straighten up . . . I will report [you] to the [D]epartment [of Social
1
Campbell presents an additional piece of evidence: She “provided G4S with documents . . . downloaded from the
OSHA and [MIOSHA] websites.” Appellant Br. 20. That conclusion relies on, but belies, her deposition testimony.
In support, Campbell cites a confusing moment during the deposition where she responded in the affirmative when
asked whether her report to Krumbach included information from the OSHA and MIOSHA websites. However, she
then responded in the negative when the attorney asked the clarifying question, “[W]as th[e OSHA information] part
of what you gave to Jim Krumbach?”
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Services], to the board, anybody, everybody.” 566 N.W.2d at 576; see also Talhelm v. ABF
Freight Sys., Inc., 364 F. App’x 176, 182 (6th Cir. 2010). At her deposition, the Shallal plaintiff
supported that statement with calendar entries of conversations with colleagues concerning
whether to report. 566 N.W.2d at 576. In Fogwell v. Klein, No. 223761, 2001 WL 1134883, at
*1 (Mich. Ct. App. Sept. 25, 2001) (per curiam), the plaintiff became concerned about her
employer’s billing practices and thus copied office records, sought legal advice, and requested a
complaint form from a public body. The plaintiff then informed the employer of her concerns.
Ibid. When the plaintiff was nonresponsive after the employer asked whether she intended to
pursue the issue, the plaintiff was fired. Unlike Campbell, the plaintiffs in Shallal and Fogwell
communicated to their employers the possibility that they would report alleged violations and
presented evidence corroborating the sincerity of those threats.
More on point are WPA cases where the evidence was insufficient to indicate that the
plaintiff was actually about to report an alleged violation. See e.g., Allen v. Charter County of
Wayne, 192 F. App’x 347, 352–53 (6th Cir. 2006) (deposition testimony showed that plaintiff
had not “formed an intent to volunteer information to the authorities”); Pope v. Brinks Home Sec.
Co., No. 294600, 2011 WL 711133, at *7 (Mich. Ct. App. Mar. 1, 2011) (per curiam) (testimony
that plaintiff told defendant of plan to report, without evidence of “other steps,” was “not enough
to meet the requisite clear and convincing standard”); Trosien, 2005 WL 3505746, at *3
(“lengthy period of time” elapsed between threats to report and discharge, and plaintiff never
took “concrete action”); Richards, 2004 WL 443991, at *2 (plaintiff made several threats to
report coworker to superiors and, possibly, public body but believed that the coworker “was
going to handle the issue”).
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III
Campbell argues that she was fired as punishment for shining a light on an irresponsible
employee who happened to be the son of an influential manager for a major client. However
legitimate that complaint may be, the WPA “does not provide that the more obvious the
employer’s bad behavior, the less the plaintiff is required to” prove. Chandler, 572 N.W.2d at
213. There is no clear and convincing evidence that Campbell was about to report Webster or
Stevenson to a public body. We therefore AFFIRM the district court’s grant of summary
judgment based on Campbell’s failure to establish the first element of a prima facie WPA case.
Accordingly, we do not address G4S’s alternative arguments for affirmance.
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