Linda Rivera v. Svrc Industries Inc

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
LINDA RIVERA, FOR PUBLICATION
April 4, 2019
Plaintiff-Appellee, 9:00 a.m.
v No. 341516
Saginaw Circuit Court
SVRC INDUSTRIES, INC., LC No. 16-031756-NZ
Defendant-Appellant.
Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.
BOONSTRA, J.
Defendant appeals by leave granted1 the trial court’s denial of its motion for summary
disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in this action alleging
that defendant violated the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and that
defendant unlawfully retaliated against plaintiff in violation of Michigan public policy. We
reverse and remand for entry of an order granting summary disposition in favor of defendant.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Plaintiff was employed as the director of industrial operations at defendant SVRC
Industries, Inc. from October 2015 to October 2016. On September 15, 2016, plaintiff conducted
a disciplinary meeting with an employee, LS, who had presented with insubordination issues.
According to plaintiff, LS made several statements during the meeting that plaintiff perceived to
be threatening; specifically, he raised the possibility of a “revolution” in this country and alluded
to the fact that he could operate a firearm, that he was not afraid to pull the trigger, and that he
did not discriminate.
1
Rivera v SVRC Indus, Inc, unpublished order of the Court of Appeals, entered February 1, 2018
(Docket No. 341516).
Plaintiff reported LS’s statements to defendant’s chief operating officer, Debra Snyder.
Plaintiff asked Snyder whether she should report the incident to the police, and Snyder stated that
she would apprise chief executive officer Dean Emerson of the situation before calling back with
further instructions. After consulting with the company’s attorney, Gregory Mair, Emerson
instructed Snyder not to file a police report on defendant’s behalf. Meanwhile, plaintiff sought
advice from a friend at a different company, who told her to notify the police and “start a paper
trail.” Plaintiff then discussed the incident with Sylvester Payne, her “on and off” significant
other, who served as the chairman of defendant’s board of directors.
Plaintiff also communicated with Snyder about the incident by text message. In the text
messages, plaintiff reasserted her concern and inquired about whether she should contact the
police. Snyder informed plaintiff that Mair had advised against filing a police report on
defendant’s behalf. Plaintiff told Snyder that she had contacted Payne to discuss the incident,
and Snyder responded by text message:
Linda, Sylvester is not an employee of SVRC. He is a board member. Please be
very careful with sharing confidential information about employees. If you want
to file a personal protection order you can do so, which may mean filing a police
report, but that is not what was advised by our attorney.
Plaintiff acknowledged that she was never discouraged by Snyder or anyone else from reporting
LS’s conduct to the police. Regardless, plaintiff never gave any indication that she was going to
report the incident to the police, and apparently never took any action to do so.
Emerson instructed Mair to investigate the incident. Mair spoke with plaintiff, as well as
other employees who were present at the meeting with LS, between September 22 and
September 28, 2016. Defendant terminated LS’s employment on October 3, 2016.
On October 4, 2016, plaintiff received notice that she was being permanently laid off
from her position with defendant, effective October 6, 2016, for “budgetary and economic
reasons.” Plaintiff filed suit against defendant, claiming that defendant had violated
MCL 15.362 of the WPA in two ways: (1) by retaliating against plaintiff when she was about to
report LS’s conduct to the police and (2) by retaliating against plaintiff when she reported LS’s
conduct to Mair. Plaintiff additionally claimed that defendant had unlawfully retaliated against
her in violation of Michigan public policy. Defendant filed a motion for summary disposition
under MCR 2.116(C)(10), which the trial court denied. This appeal followed. Following oral
argument in this Court, we issued an order directing the parties to file supplemental briefs
addressing whether plaintiff's communications with Mr. Mair constituted a
“report” of a violation or suspected violation of law within the meaning of MCL
15.362. The parties need not address the status of Mr. Mair as a member of the
State Bar of Michigan. Rather, the supplemental briefs should focus only on
whether the communications in the context of this case constituted a "report"
within the meaning of the statute.
The parties filed supplemental briefs in accordance with that order, and we have additionally
considered the arguments presented in those briefs.
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II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition.
Dextrom v Wexford Co, 287 Mich. App. 406, 416; 789 NW2d 211 (2010). Whether evidence
establishes a prima facie case of retaliation under the WPA is a question of law that this Court
also reviews de novo. Roulston v Tendercare (Mich), Inc, 239 Mich. App. 270, 279; 608 NW2d
525 (2000).
Under MCR 2.116(C)(10), summary disposition is appropriate if “there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as
a matter of law.” Motions for summary disposition under MCR 2.116(C)(10) test the factual
sufficiency of the complaint. Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999).
“A question of fact exists when reasonable minds could differ as to the conclusions to be drawn
from the evidence.” Dextrom, 287 Mich. App. at 416. When evaluating motions brought under
this subrule, a trial court must consider—in the light most favorable to the nonmoving party—the
parties’ affidavits, pleadings, depositions, admissions, and other documentary evidence. Id.,
citing MCR 2.116(G)(5). Such evidence is required when judgment is sought under subrule
(C)(10). MCR 2.116(G)(3)(b). Motions under subrule (C)(10) “must specifically identify the
issues as to which the moving party believes there is no genuine issue as to any material fact.”
MCR 2.116(G)(4). The nonmoving party may not rest upon its pleading, but must set forth
specific facts showing that there is a genuine issue for trial. Id. If the nonmoving party fails to
do so, the moving party is entitled to judgment as a matter of law. Maiden, 461 Mich. at 120.
III. ANALYSIS
Plaintiff’s complaint alleged three claims: (1) retaliation in violation of the WPA as a
result of plaintiff allegedly being about to report LS’s conduct to the police; (2) retaliation in
violation of the WPA as a result of plaintiff allegedly having actually reported LS’s conduct to
Mair; and (3) retaliation in violation of Michigan public policy as a result of plaintiff’s alleged
attempt to report LS’s conduct to the police and by plaintiff’s alleged refusal to conceal LS’s
supposed violation of Michigan’s Anti-Terrorism Act, MCL 750.543a et seq. Defendant argues
that the trial court should have granted summary disposition in its favor on all of these claims.
We agree.
A. WPA LEGAL PRINCIPLES
The WPA protects plaintiffs who report or are about to report violations or suspected
violations of law undertaken by employers and coworkers. Chandler v Dowell Schlumberger
Inc, 456 Mich. 395, 403; 572 NW2d 210 (1998). Under MCL 15.362:
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 . . . 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
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public body to participate in an investigation, hearing, or inquiry held by that
public body, or a court action.
The WPA “provides protection for two types of ‘whistleblowers’: (1) those who report, or about
to report, violations of law, regulation, or rule to a public body, and (2) those who are requested
by a public body to participate in an investigation held by that public body or in a court action.”
Henry v Detroit, 234 Mich. App. 405, 409; 594 NW2d 107 (1999). A “type 1 whistleblower” is
someone “who, on his own initiative, takes it upon himself to communicate the employer’s
wrongful conduct to a public body in an attempt to bring the, as yet hidden, violation to light to
remedy the situation or harm done by the public body.” Id. at 410. “Type 2 whistleblowers” are
those who “participate in a previously initiated investigation or hearing at the behest of a public
body.” Id. In this case, plaintiff principally argues that she was a type 1 whistleblower, i.e., that
she reported or was about to report a violation of the law to a public body.2
The parties do not dispute that plaintiff was an employee or that defendant was an
employer under the act. A “public body” refers to any of the following:
(i) A state officer, employee, agency, department, division, bureau, board,
commission, council, authority, or other body in the executive branch of state
government.
(ii) An agency, board, commission, council, member, or employee of the
legislative branch of state government.
(iii) A county, city, township, village, intercounty, intercity, or regional
governing body, a council, school district, special district, or municipal
2
In her supplemental brief on appeal, plaintiff argues for the first time that she also engaged in
protected activity by participating in an investigation conducted by Mair (i.e., that she was a
Type 2 whistleblower). However, a fair reading of plaintiff’s complaint does not reflect any
such claim. Moreover, in opposing defendant’s motion for summary disposition in the trial
court, plaintiff made no such argument, and instead effectively disclaimed any such contention
(“Plaintiff claims two (2) distinct acts constitute protected activity. First, Plaintiff was about to
report a violation of law to the local police department. . . . Second, Plaintiff reported Mr.
Summerfield’s unlawful behavior to a licensed attorney, Gregory Mair.”) We need not consider
an issue that, although it could have been, was not raised before the trial court, but was instead
raised for the first time on appeal in a supplemental brief. See Booth Newspapers, Inc v Univ of
Mich Bd of Regents, 444 Mich. 211, 234; 507 NW2d 422 (1993). Moreover, in speaking with
Mair, plaintiff did not “participate in a previously-initiated investigation or hearing at the behest
of a public body.” Henry, 234 Mich. App. at 410 (emphasis added). To the contrary, and by her
own admission, she participated in an interview at the direction of her employer, and did so only
after she had already communicated her concerns to the employer. We therefore conclude in any
event that plaintiff did not engage in protected activity under this prong of the WPA.
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corporation, or a board, department, commission, council, agency, or any member
or employee thereof.
(iv) Any other 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.
(v) A law enforcement agency or any member or employee of a law
enforcement agency.
(vi) The judiciary and any member or employee of the judiciary.
[MCL 15.361(d)(i) through (vi).]
To survive summary disposition on a claim for retaliation in violation of the WPA, a
plaintiff must establish a prima facie case. McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316
Mich. App. 1, 16-17; 891 NW2d 528 (2016). This Court has outlined three elements a plaintiff
must establish in order to carry his or her burden of making out a prima facie case for retaliation
under the WPA:
(1) The employee was engaged in one of the protected activities listed in the
provision.
(2) [T]he employee was discharged, threatened, or otherwise discriminated
against regarding his or her compensation, terms, conditions, location, or
privileges of employment.
(3) A causal connection exists between the employee’s protected activity and the
employer’s act of discharging, threatening, or otherwise discriminating against the
employee. [Wurtz v Beecher Metro Dist, 495 Mich. 242, 250-252; 848 NW2d 121
(2014).]
To establish a prima facie case, a plaintiff can rely on either direct or circumstantial
evidence of retaliation. Id. at 17. Direct evidence of retaliation is evidence that, if believed,
requires the conclusion that retaliatory animus was “at least a motivating factor in the employer’s
actions.” Id. at 18 (citation omitted). Our Supreme Court has stated with regard to
circumstantial evidence of retaliation that:
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.
A 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]. [Debano-Griffin v Lake Co, 493 Mich. 167, 173, 176; 828 NW2d
634 (2013) (quotation marks and citation omitted).]
Consequently, circumstantial evidence of retaliation requires the application of the framework
set forth in McDonnell-Douglas Corp v Green, 411 U.S. 792; 93 S. Ct. 1817; 36 L. Ed. 2d 668
(1973). That is, where a plaintiff presents circumstantial evidence of retaliation, the burden then
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shifts to the defendant to rebut the presumption of a causal connection by articulating a
legitimate business reason for its adverse employment action. McNeill-Marks, 316 Mich. App. at
18. If the defendant offers such a reason, the burden shifts back to the plaintiff to show that a
genuine issue of material fact still exists by showing that “ ‘a reasonable fact-finder could still
conclude that the plaintiff’s protected activity was a motivating factor for the employer’s adverse
action, i.e., that the employer’s articulated legitimate reason was a pretext disguising unlawful
animus.’ ” Id., quoting Debano-Griffin, 493 Mich at 176 (quotation marks omitted). This Court
has explained:
“A plaintiff can establish that a defendant’s articulated legitimate . . . reasons are
pretexts (1) by showing the reasons had no basis in fact, (2) if they have a basis in
fact, by showing that they were not the actual factors motivating the decision, or
(3) if they were factors, by showing that they were jointly insufficient to justify
the decision.” [McNeill-Marks, 316 Mich. App. at 18, quoting Feick v Monroe Co,
229 Mich. App. 335, 343; 582 NW2d 207 (1998) (ellipsis in original).]
B. PLAINTIFF’S “ABOUT TO REPORT” CLAIM
Defendant argues that the trial court should have granted summary disposition in its favor
on plaintiff’s “about to report” claim under the WPA because plaintiff presented no evidence that
she was about to report LS’s conduct to the police. We agree.
An employee may satisfy the first element of the prima facie case analysis by
demonstrating that he or she was “about to report” a suspected violation of law to a public body.
Shallal v Catholic Social Servs of Wayne Co, 455 Mich. 604, 610; 566 NW2d 571 (1997). Our
Supreme Court has noted that “Webster's defines ‘about’ as ‘on the verge of’ when followed by
an infinitive, such as ‘to leave,’ or in this case, ‘to report.’ ” Shallal, 455 Mich. at 612, quoting
Random House Webster's College Dictionary (1995) (emphasis added). When pursuing an
“about to report” claim under the WPA, a plaintiff bears the burden of proving, by clear and
convincing evidence, that he or she was on the verge of reporting a suspected violation of law.
Shallal, 455 Mich. at 611; MCL 15.363(4). However, the plaintiff’s proof “need not consist of a
concrete action to satisfy the ‘about to report’ element.” Shallal, 455 Mich. at 615.
The law does not require a plaintiff to explicitly state that he or she has decided to report
a violation or suspected violation of the law in the immediate future in order to establish that she
was “about to” report such activity. Id. at 620 n 9. However, “ ‘[a]n employer is entitled to
objective notice of a report or a threat to report by the whistleblower.’ ” Roulston, 239 Mich
App at 279, quoting Roberson v Occupational Health Ctrs of America, Inc, 220 Mich. App. 322,
326; 559 NW2d 86 (1996) (quotation marks omitted).
In Shallal, 455 Mich. at 621, our Supreme Court held that
[the] plaintiff's express threat to the wrongdoer that she would report him if he did
not straighten up, especially coupled with her other actions, was more than ample
to conclude that reasonable minds could find that she was “about to report” a
suspected violation of the law to the [Department of Social Services].
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By “other actions,” the Court was referring to the plaintiff having scheduled and attended
meetings with her coworkers to discuss the reporting of their agency president’s alcohol abuse
and misuse of agency funds. Id. at 606, 613-614. The Court noted that the plaintiff had made an
“express threat to her employer” that she would report him to the board of directors if he did not
change, and that “[c]onfronting a supervisor with a threat of a report serves to promote the public
policy of whistleblower statutes. Certainly such a threat should demonstrate that the employee
has an actual intent to report the violation.” Id. at 619.
In Hays v Lutheran Social Servs of Mich, 300 Mich. App. 54, 62-64; 832 NW2d 433
(2013), the plaintiff discussed a client’s marijuana use with her supervisor, coworkers, and a Bay
Area Narcotics Enforcement Team (BAYANET) official to inquire about the legal ramifications
of knowing that someone was using illegal drugs and failing to report it. Id. at 57. When the
BAYANET official asked if the plaintiff would like to make a report, the plaintiff declined. Id.
The plaintiff’s employment was terminated when the defendant, her employer, discovered that
the plaintiff had breached a client confidentiality agreement by disclosing her client’s drug use.
Id. at 57-58. The plaintiff argued that the defendant had violated the WPA, claiming that she
was about to report a violation or suspected violation of law. Id. at 62-64. However, this Court
held that the plaintiff had failed to satisfy the protected activity element of her prima facie case
because her inquiries about potential consequences did not indicate an affirmative intent to
actually report her client’s behavior. Id. at 63. Instead, “[h]er conversations demonstrate[d] only
that while [the] plaintiff knew about the behavior and had a sufficiently long time to report the
behavior, she declined to do so.” Id. Moreover, the plaintiff in Hays never threatened to take
further action, such that there was “no evidence that [the] defendant received objective notice
that [the] plaintiff was about to report [her client’s] behavior to a public body.” Id. at 63-64.
In this case, plaintiff’s conduct is more akin to that of the plaintiff in Hays than to that of
the plaintiff in Shallal, 455 Mich. at 621. Plaintiff did not, either explicitly or implicitly, threaten
to report LS’s conduct. Rather, while plaintiff’s text messages and deposition testimony reveal
that she believed that contacting the police was the correct course of action, the record shows
only that she discussed with various people the option of filing a police report and conveyed her
opinion. It does not demonstrate that, after her consultations, she had determined that filing a
police report was still the best course of action or, more significantly, that she was on the verge
of contacting law enforcement. See Shallal, 455 Mich. at 612. Additionally, there is no evidence
that defendant was ever put on notice that plaintiff was about to report LS’s conduct. Roulston,
239 Mich. App. at 279.
For these reasons, plaintiff has failed to prove that a genuine issue of material fact existed
regarding whether she had engaged in a protected activity by being about to report a violation or
suspected violation of law. Shallal, 455 Mich. at 610. Accordingly, the trial court erred by
denying defendant summary disposition on this claim. MCR 2.116(C)(10); Maiden, 461 Mich. at
120.
C. PLAINTIFF’S “ACTUAL REPORT” RETALIATION CLAIM
Defendant also argues that the trial court erred by denying summary disposition in its
favor on plaintiff’s WPA claim premised on her communication with Mair. We agree.
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As the trial court noted, practicing attorneys who are members of the State Bar of
Michigan are considered members of a “public body” under MCL 15.361(d)(iv). McNeill-Marks
316 Mich. App. at 23. Based on that, the trial court concluded, albeit without further analysis, that
when plaintiff discussed LS’s conduct with Mair, plaintiff had engaged in protected activity. We
conclude that the trial court’s analysis did not go deep enough, and that the trial court erred in
reaching that conclusion.
Although McNeill does hold that a licensed attorney is a member of a “public body” for
purposes of the WPA, id., it does not compel the conclusion that plaintiff’s conversation with
Mair was in this case a “report” of a violation (or suspected violation) of the law. For several
reasons, we conclude that it was not. First, plaintiff did not “on [her] own initiative, take it upon
[herself] to communicate the employer’s wrongful conduct to a public body in an attempt to
bring the, as yet hidden, violation to light.” Henry, 234 Mich. App. at 410. Rather, plaintiff spoke
with Mair at defendant’s request.3 In other words, when she spoke with Mair, plaintiff was not
an “initiator” and did not “take it upon [herself]” to communicate with Mair. Id.4
Additionally, the trial court appears to have assumed that the nature of plaintiff’s
discussion with Mair was that of “reporting.” We do not agree. Indeed, the information that
plaintiff conveyed to Mair was the same as that which she had already directly communicated to
defendant, and that information was already known to Mair by virtue of plaintiff’s earlier
communications with defendant itself. 5 As a consequence, the information was no longer “as yet
hidden,” id., at the time of the communication with Mair. We conclude, in this context, that
plaintiff’s communications with Mair do not constitute “reporting” under the WPA.
As Justice ZAHRA noted in his dissent from the Court’s denial of leave in McNeill-Marks,
see McNeill-Marks v MidMichigan Center-Gratiot, 502 Mich. 851, ___; 912 NW2d 181 (2018)
(ZAHRA, J., dissenting), the term “report” is not defined in the WPA. Therefore, a court may
consult a dictionary to determine the plain and ordinary meaning of the term. Epps v 4 Quarters
Restoration, LLC, 498 Mich. 518, 529; 872 NW2d 412 (2015). Although “report” has many
definitions, we conclude that the definitions most applicable in the context of the WPA are “to
make a charge against” or “to make known the presence, absence, condition, etc.” of something.
See Random House Webster’s College Dictionary (2d ed), p 1120. These definitions comport
3
Indeed, plaintiff affirmatively stated, both in her complaint and in her affidavit, that defendant
had “required” her to meet with Mair.
4
Our decision does not rest on the motivation behind plaintiff’s communication. See Whitman v
City of Burton, 493 Mich. 303, 306, 313; 831 NW2d 223 (2013).
5
In her complaint, plaintiff alleged that in meeting with Mair, she “again relayed” the
information that she had previously conveyed to defendant. Similarly, in her affidavit, plaintiff
described her conversation with Mair as “the same conversation I had with Ms. Snyder in my
text messages to her,” as a “reiteration,” and as “again indicating” what she had previously
conveyed to defendant directly. In her deposition, plaintiff also acknowledged that she conveyed
the same information to Mair that she had earlier conveyed to Snyder.
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with Henry’s characterization of a type 1 whistleblower. Henry, 234 Mich. App. at 410. In other
words, under the WPA, a plaintiff “reports” a violation of the law when he or she “makes a
charge” of illegality against a person or entity, or “makes known” to a public body pertinent
information related to illegality. Plaintiff in this case did neither in her conversation with Mair.
Her discussion with Mair cannot reasonably be seen as “charging” LS with illegal conduct, nor
did plaintiff make anything known to Mair that he did not already know by virtue of plaintiff’s
earlier communications with defendant. We conclude that plaintiff at most “communicate[d] an
illegality6 to a person falling under the broad definition of ‘public body’ ” and did not engage in
protected activity under the WPA. McNeill-Marks, 502 Mich at ___ (ZAHRA, J., dissenting).
Further, although Mair may in general terms have been a member of a “public body”
under McNeill-Marks by virtue of his profession, he was also acting as defendant’s agent when
plaintiff communicated with him. “A lawyer is an agent, to whom clients entrust matters,
property, and information, which may be of great importance and sensitivity, and whose work is
usually not subject to detailed client supervision because of its complexity.” See 1 Restatement
Law Governing Lawyers, 3d, Introductory Note, p 124. “Fundamental to the existence of an
agency relationship is the right to control the conduct of the agent with respect to the matters
entrusted to him.” St Clair Intermediate Sch Dist v Intermediate Ed Ass’n/Mich Ed Ass’n, 458
Mich. 540, 557-558; 581 NW2d 707 (1998). Therefore, when plaintiff communicated with Mair
at defendant’s direction, she was, in essence, again communicating with Mair’s principal, i.e.,
defendant. Plaintiff’s communication with Mair cannot reasonably be termed “an attempt to
bring the, as yet hidden, violation to light to remedy the situation or harm done by the violation,”
Henry, 234 Mich. App. at 410, when (1) plaintiff had already imparted the information directly to
defendant, (2) defendant had already shared the information with Mair, and (3) in further
speaking with Mair, plaintiff merely repeated the same information to defendant’s agent.
Consequently, plaintiff’s communication with Mair was not a “reporting” of information under
the WPA.
To conclude otherwise would be to transform what was a non-actionable communication
(i.e., plaintiff’s communication with defendant, which is not a “public body” under the WPA)
into an actionable one merely because, at defendant’s behest, plaintiff re-conveyed the same
information to defendant’s attorney-agent. We cannot endorse such a strained reading of the
“reporting” requirement of the protected activity element under the WPA.
The trial court therefore erred by concluding that plaintiff had engaged in protected
activity by communicating with Mair. But even if we were to find otherwise, we would hold that
the trial court erred by concluding that plaintiff carried the burden of showing a causal
connection between her communication with Mair and the resulting adverse employment action.
As stated earlier, plaintiff has admitted that she told Mair what he, and defendant, already knew.
Plaintiff offered no evidence before the trial court establishing a causal connection between that
6
Again, and while it is not critical to our analysis, plaintiff in this case communicated
information about statements that she perceived to be threatening in nature; it is not clear that she
communicated information about an “illegality” or even a “suspected illegality.”
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communication, which was initiated at defendant’s request, and her termination. Temporal
proximity, without more, is insufficient to prove a causal connection between the protected
activity and adverse employment action. Debano-Griffin, 493 Mich. at 177. Plaintiff’s claims
under the WPA are essentially that her reaction to the incident with LS led to defendant’s
decision to terminate her; however, even if true, she presented no evidence even suggesting that
any “reporting” she did to Mair played a role in that decision. Indeed, plaintiff chiefly argued
below, and argues on appeal, that defendant’s proffered legitimate business reason for her
termination was pretextual. But defendant did not even need to offer a legitimate business
reason for her termination until plaintiff carried her initial burden with respect to causation.
McNeill-Marks, 316 Mich. App. at 18. Because there was no evidence of causation, as between
her communication with Mair and her termination, plaintiff failed to carry that burden, and
therefore no presumption of retaliation arose. Absent a presumption of retaliation, it simply
matters not whether defendant’s offering of “budgetary and economic reasons” was factually
supported. “[A] ‘plaintiff cannot simply show that the employer’s decision was wrong or
mistaken, since the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or competent.’ ” Debano-Griffin,
493 Mich. at 180, quoting Hazle, 464 Mich. at 476.
For all of these reasons, we conclude that the trial court erred by denying summary
disposition in favor of defendant on plaintiff’s claim under the WPA based on her
communication with Mair. MCR 2.116(C)(10); Maiden, 461 Mich. at 120.
D. UNLAWFUL RETALIATION IN VIOLATION OF MICHIGAN PUBLIC POLICY
Defendant also argues that the trial court erred when it denied summary disposition in its
favor on plaintiff’s claim of unlawful retaliation in violation of public policy. Again, we agree.
Termination of at-will employment is typically proscribed by public policy in Michigan in three
situations: “(1) ‘adverse treatment of employees who act in accordance with a statutory right or
duty,’ (2) an employee’s ‘failure or refusal to violate a law in the course of employment,’ or (3)
an ‘employee’s exercise of a right conferred by a well-established legislative enactment.’ ”
Kimmelman v Heather Downs Mgt Ltd, 278 Mich. App. 569, 573; 753 NW2d 265 (2008), quoting
Suchodolski v Mich Consol Gas Co, 412 Mich. 692, 695-696; 316 NW2d 710 (1982). However,
where a statute already exists that prohibits a particular adverse employment action, the statute
provides the exclusive remedy, and claims under Michigan public policy cannot be maintained.
Kimmelman, 278 Mich. App. at 573.
To that end, “[t]he remedies provided by the WPA are exclusive and not cumulative.
Thus, when a plaintiff alleges discharge in retaliation for engaging in activity protected by the
WPA, [t]he WPA provides the exclusive remedy for such retaliatory discharge and consequently
preempts common-law public-policy claims arising from the same activity.” McNeill-Marks,
316 Mich. App. at 25 (quotation marks and citation omitted; second alteration in original).
Plaintiff’s “public policy” claim that she was terminated because she “attempted to
report” LS’s conduct to the police or “refused to conceal” LS’s alleged violations of the Anti-
Terrorism Act arises from the same activity as do her claims under the WPA. See MCL 15.362;
see also McNeill-Marks, 316 Mich. App. at 25. Indeed, a refusal to conceal unlawful conduct
from a public body is not distinguishable from reporting or being about to report that conduct to
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a public body because there is “no logical distinction between the refusal to conceal and the
report by which that refusal manifested itself; rather, the two are flip sides of the same coin.” Id.
at 26. Accordingly, the trial court erred by denying summary disposition on plaintiff’s claim for
retaliation in violation of public policy because they were duplicative of her claims under the
WPA. MCR 2.116(C)(10); Maiden, 461 Mich. at 120.7
We reverse and remand for entry of an order granting summary disposition in favor of
defendant. We do not retain jurisdiction.
/s/ Mark T. Boonstra
/s/ Michael J. Kelly
/s/ Deborah A. Servitto
7
We are not persuaded by plaintiff’s contention that her public policy claim is broader that her
WPA claims because it “could include” a refusal to conceal LS’s conduct from Payne or others
who are not public bodies. First, not only is there no evidence that plaintiff “refused to conceal”
LS’s conduct from Payne or others, there is instead evidence that plaintiff actually disclosed that
conduct to them. There is, moreover, no evidence in the record that defendant directed plaintiff
not to disclose LS’s conduct to (or that plaintiff “refused” to conceal it from) anyone. Finally,
Snyder’s caution to plaintiff (after she had disclosed information to Payne) to “[p]lease be very
careful with sharing confidential information about employees” wholly fails to provide any basis
for plaintiff’s public policy claim.
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