Rivera v. SVRC Indus., Inc.

327 Mich.App. 446

934 N.W.2d 286

Linda RIVERA, Plaintiff-Appellee,

v.SVRC INDUSTRIES, INC., Defendant-Appellant.

No. 341516

Court of Appeals of Michigan.

Submitted February 12, 2019, at Lansing.

Decided April 4, 2019, at 9:00 a.m.

The Mastromarco Firm, Saginaw (by Victor J. Mastromarco, Jr., Kevin J. Kelly, and Russell C. Babcock ) for plaintiff.

David A. Wallace, Brett Meyer, Robert A. Jordan, and Kailen C. Piper, Saginaw, for defendant.

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 (the WPA), MCL 15.361 et seq ., and unlawfully retaliated against plaintiff in violation of Michigan public policy. We reverse and remand the case for entry of an order granting summary disposition in favor of defendant.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff, Linda Rivera, 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, to address insubordination issues. According to plaintiff, LS made several statements during the meeting that plaintiff perceived to be threatening; specifically, LS 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.

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 to, in effect, "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. Let’s talk when you get to work in the morning.

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 she 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 moved for summary disposition under MCR 2.116(C)(10), which the trial court denied. This appeal followed. After 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. [Rivera v. SVRC Indus., Inc. , unpublished order of the Court of Appeals, entered February 14, 2019 (Docket No. 341516).]

The parties filed supplemental briefs in accordance with that order, and we have additionally considered the arguments presented in those briefs.

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 N.W.2d 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, 278, 608 N.W.2d 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 N.W.2d 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, 789 N.W.2d 211. 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 . at 415-416, 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, 597 N.W.2d 817.

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’s 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 the Michigan Anti-Terrorism Act, MCL 750.543a et seq . Defendant argues that the trial court should have granted summary disposition in its favor on all 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 N.W.2d 210 (1998). Under MCL 15.362,

[a]n 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 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 N.W.2d 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 violation." Id . at 410, 594 N.W.2d 107. "[T]ype 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

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