Spadafore v. Gardner

HECKMANN v DETROIT CHIEF OF POLICE Docket No. 260115. Submitted June 14,2005, at Detroit. Decided July 26, 2005, at 9:05 a.m. Eric C. Heckmann brought an action in the Wayne Circuit Court against the Detroit Chief of Police and others, alleging a violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and intentional infliction of emotional distress relating to his treatment as an employee of the police department after he sent a letter to the police chief and the mayor of Detroit detailing allegations of financial mismanagement in the police department. The court, John H. Gillis, Jr., J., granted summary disposition for the defendants, ruling that the WPA claim is precluded because the plaintiff failed to exhaust administrative remedies available through grievance procedures provided under a collective bargaining agreement, and that the plaintiff failed to establish the existence of a genuine issue of material fact concerning outrageous and extreme conduct to avoid summary dismissal of the claim of intentional infliction of emotional distress. The plaintiff appealed. The Court of Appeals held-. 1. The circuit court erred by ruling that the plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his rights under the WPA. The plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of remedies to the WPA claim would frustrate the purpose of the act, particularly when the act provides that relief must be sought within ninety days after the occurrence of the alleged violation of the act. That span obviates the possibility of the exhaustion of administrative remedies. 2. The circuit court erred as a matter of law by ruling that the plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim. The allegation that a supervisor told the plaintiff to start looking for a job elsewhere if he kept “making waves” and wasting the supervisor’s time, and evidence supporting that allegation, support the inference that the supervisor-defendant threatened the plaintiff with discharge in retaliation for his letter. MCL 15.362 provides that an employer shall not threaten or otherwise discriminate against an employee for protected activities. Material questions of fact exist regarding whether the comment was made by the supervisor, whether it was a threat of discharge, and whether it was causally related to the plaintiffs letter. Summary disposition was inappropriate. 3. Ostracism or social isolation is not the sort of conduct that rises to the level of an adverse employment action barred by the WPA. In this case, the plaintiff communicated regularly with his supervisor and maintained working relationships with his supervisor and coworkers. These negate the allegation related to ostracism and social isolation. 4. To the extent that the WPA requires that a whistleblower report to a public body other than the whistleblower’s employer, the plaintiff satisfied the requirement by sending a copy of his letter to the mayor. 5. The circuit court properly dismissed the claim for the intentional infliction of emotional distress. Reasonable minds could not differ and would conclude that the defendants’ alleged conduct that formed the basis of the plaintiffs claim was not outrageous. Affirmed in part, reversed in part, order of summary disposition for the defendants vacated, and case remanded for further proceedings. 1. Master and Servant — Whistleblowers’ Protection Act — Exhaustion of Administrative Remedies. The Whistleblowers’ Protection Act does not require that administrative remedies be exhausted before relief is sought under the act (MCL 15.361 et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Adverse Employment Actions. A threat of discharge from employment following an employee’s report of a violation or suspected violation of law may support a claim by the employee that the employer threatened the employee in violation of the Whistleblowers’ Protection Act (MCL 15.362). 3. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Ostracism — Social Isolation. Ostracism and social isolation are not the sorts of conduct that rise to the level of an adverse employment action barred by the Whistleblowers’ Protection Act (MCL 15.362). 4. Master and Servant — Whistleblowers’ Protection Act — Public Body. The Whistleblowers’ Protection Act requires that a whistleblower report to a public body; where an employee of a city’s police department sends a report to the city’s mayor, the requirement of reporting to a public body is satisfied (MCL 15.361 et seq.). Stefani & Stefani, P.C. (by Michael L. Stefani and Frankie J. Rivers), for the plaintiff. Andrew R. Jarvis, Senior Assistant Corporation Counsel, for the defendants. Before: SAWYER, P.J., and MARKEY and MURRAY, JJ. Per Curiam. Plaintiff Eric Heckmann is a civilian employee of the fiscal operations section (FOS) of the Detroit Police Department. On September 11,2002, plaintiff wrote a five-page letter to the then newly appointed chief of police detailing allegations of gross mismanagement and fraud within the department, including the hiring of unnecessary employees who performed no meaningfiil work, misuse of overtime, falsification of time records, misuse of government properly, and premature payments of invoices. Plaintiff claims that as a result of this letter, defendants threatened or otherwise discriminated against him in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff sued and also alleged in a second count that defendants intentionally inflicted emotional distress. The trial court granted defendants’ motion for summary disposition, and plaintiff appeals by right. Because we find that plaintiff pleaded and factually supported some of his WPA claims, we reverse in part, affirm in part, and remand for further proceedings in the trial court. I. SUMMARY OF FACTS AND PROCEEDINGS Plaintiff is a longtime city of Detroit employee who has worked for the city’s police department since 1992. In 2002, plaintiff was a principal accountant in the department’s FOS. Plaintiff claims that in August 2002, he sent a memorandum to Deputy Chief Brenda Goss Andrews, supervisor of the department’s management services bureau, requesting a meeting to discuss his observations of financial misconduct within the FOS. Upon receiving no response from Andrews, plaintiff sent his September 2002 letter to newly appointed chief of police, Jerry Oliver. Plaintiff also forwarded a copy of the letter to Detroit Mayor Kwame Kilpatrick and to the president of the Association of Professional and Technical Employees, a union in which plaintiff was a member. Plaintiff acknowledged that beginning in January 2003 the union had initiated approximately five grievance procedures on his behalf. Plaintiff asserts that he did not receive a response to his September 2002 letter until being called to a meeting in Andrews’s office on April 8, 2003. Defendants Marlene Hobbs and Hasumati Patel, the manager of the FOS also attended. After Patel’s appointment in January 2003, plaintiff initiated the first of his grievances, which alleged that Patel had been appointed to her position contrary to the union contract and the city’s own rules regarding promotional opportunities. Plaintiff also had criticized Hobbs in his September 2002 letter, but Hobbs was promoted in April 2003 to the position of head governmental analyst in charge of the accounts payable unit of the FOS. Plaintiff claims that, during the April meeting, Andrews discussed his September 2002 letter and that Andrews told plaintiff that he should “start looking for a job elsewhere” if he kept “making waves” and forcing Andrews to waste her time. Plaintiff asserts that Andrews’s comment to him at the April meeting was a “threat” within the meaning of MCL 15.362. Plaintiff further alleges that after the April meeting, defendants “otherwise discriminated” against him by reducing his duties and socially isolating him. With respect to the former claim, plaintiff testified that Patel authored a memorandum on April 10, 2003, outlining the respective work assignments of various FOS personnel. According to plaintiff, although others were assigned ten or more duties, he was assigned only four. Plaintiff acknowledged, however, that his four assigned responsibilities entailed accounting for approximately $65 million to $80 million. Regarding social isolation, plaintiff testified that his supervisors would ignore him but make a point of saying hello to every other person in the office. But plaintiff acknowledged that he had a working relationship with Patel, with whom he communicated regularly by e-mail. Plaintiff also admitted that no acrimony existed between him and his coworkers, with whom he also maintained a working relationship. In moving for summary disposition, defendants argued that plaintiff’s September 2002 letter was not a “report” within the meaning of the WPA because it was not made to an outside agency; rather, it was merely an intra-agency complaint sent up the normal chain of command. Defendants also argued that plaintiff had not suffered an adverse employment, action because he had not been fired, demoted, or transferred to a different job; plaintiff retained the same job classification he had held, albeit with some altered job assignments. Defendants further noted that although plaintiff was a union member, he had not initiated a grievance regarding his WPA claims. In opposing defendants’ motion for summary disposition, plaintiff alleged that he was passed over for promotion in January 2003 when the position of supervisor was filled without being posted or through other normal procedures. Plaintiff also pointed to his claim that in April 2003 Andrews told him to start looking for another job if he continued to “make waves.” Plaintiff also argued that his duties had been significantly reduced and that being ignored had created hostility. In granting defendants summary disposition, the trial court stated: Okay, in this case the Plaintiff is a member of a union and subject to a collective bargaining agreement and has not exhausted his administrative remedies. Secondly, he was not fired. He was not demoted. He was not transferred. Because he didn’t get a promotion is not the basis for [a] cause of action. The motion is granted on all counts. On appeal, plaintiff challenges the trial court’s ruling that dismissal of the WPA claim was proper because plaintiff had not suffered an adverse employment action for the purposes of the act and had failed to exhaust union remedies, and that, in fact, he should have received summary disposition on that claim because he established without rebuttal a prima facie case. Plaintiff further asserts that he established the existence of a genuine issue of material fact concerning whether he had suffered outrageous and extreme conduct for the purposes of his emotional distress claim. Plaintiff additionally argues that defendants were not entitled to summary disposition because they failed to comply with the rules of discovery. II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The trial court and this Court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183. We also review de novo questions of law, including statutory construction. Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998). III. WPA ANALYSIS A. EXHAUSTION OF ADMINISTRATIVE REMEDIES We first hold that the trial court erred as a matter of law by applying the doctrine of exhaustion of administrative remedies to plaintiffs statutory WPA claim. Plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of administrative remedies would frustrate the purpose of the statute, particularly when the statute provides that relief must be sought “within 90 days after the occurrence of the alleged violation of [the] act” or be lost. MCL 15.363(1). We are guided by the following principles of statutory construction set forth by our Supreme Court in Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997): The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Citations omitted.] Nowhere in the statute has the Legislature either expressly or impliedly limited its protection to whistle-blowers who have exhausted other possible remedies, whether those possible remedies are statutory, contractual, or administrative. Indeed, when the WPA duplicates possible common-law remedies, the statute provides the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78-79; 503 NW2d 645 (1993). The purpose of the statute is “to alleviate . . . the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses,” id. at 75, by removing the barrier of fear of retribution that prevents employees in the best position to report corruption from reporting it, Shallal, supra at 612. We thus further the purpose of the WPA of protecting whistleblowers by not reading into the statute limitations the Legislature did not express. Our reading of the statute is also consistent with prior case law applying the WPA and comparable employment discrimination statutes. See, e.g., Shallal, supra at 617, quoting Rouse v Farmers State Bank of Jewell, Iowa, 866 F Supp 1191, 1204 (ND Iowa, 1994) (“ ‘ [W]histleblower statute[s] [are] analogous to antiretaliation provisions of other employment discrimination statutes and . . . the policies underlying these similar statutes warrant parallel treatment. . . .’ ”)• See also Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 280; 608 NW2d 525 (2000) (the WPA bears substantial similarities to Michigan’s civil rights statutes). This Court first addressed the WPA in Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987). At issue in Hopkins was whether a union grievance resulting in an arbitration decision in favor of the employer barred the plaintiffs subsequent WPA action. The Court held “that [the] plaintiffs failure to submit [his WPA] claims to arbitration does not act as res judicata or collateral estoppel....” Id. at 366. The Hopkins Court reasoned that the rights and remedies accorded by the WPA are different from those of a collective bargaining agreement, noting that “the act creates rights belonging to individual employees, not collectively represented groups.” Id. at 374-375. Consequently, “the arbitration proceeding [in Hopkins] was brought by [the] plaintiffs union, as is the usual case, to assert rights created under a collective bargaining agreement.” Id. at 375. But, “a civil action may be required to achieve the act’s goals.” Id. This Court reviewed Hopkins when faced with the question whether a whistleblower who reports a violation of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., must bring the retaliation claim under MIOSHA. Tyrna v Adamo, Inc, 159 Mich App 592, 600; 407 NW2d 47 (1987). The Tyrna Court determined that the whistleblower did not have to do so and held “that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistle-blowers’ act notwithstanding the fact that the employer’s wrongful conduct also violates MIOSHA.” Id. at 594. Although MIOSHA provides its own antiretaliation provision, the Tyrna panel reasoned that the WPA had broader application and provided a wider panoply of legal and injunctive remedies. Tyrna, supra at 598-600. Because the Court found no conflict between MIOSHA and the WPA, the Court held that, without further legislative direction, the plaintiff could pursue his claim under either statute. Tyrna, supra at 600-601. This Court applied similar reasoning in concluding that a settlement of a union grievance filed on behalf of a discharged employee did not bar an action alleging wrongful termination under the Persons With Disabilities Civil Rights Act (formerly the Handicappers’ Civil Rights Act), MCL 37.1101 et seq., and the Civil Rights Act (CRA), MCL 37.2101 et seq. Florence v Dep’t of Social Services, 215 Mich App 211, 216-217; 544 NW2d 723 (1996). The Court observed that a union has a duty to speak for its members with respect to the terms of a collective bargaining agreement, but a union does not have a similar duty to uphold rights its members possess independently of the collective bargaining agreement. Id. at 214. The Court held that because the employee’s contractual rights and statutory rights were distinctly separate, the employee had a right to proceed on her statutory claims regardless of the agreement that her union reached with respect to the contractual grievance. Id. at 214-216. In sum, we hold that the trial court erred by ruling that plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his statutory WPA rights. Our conclusion is consistent with the WPA’s requirement that claims be brought promptly or not at all, with the statute’s lack of any express or implied requirement for exhaustion of administrative remedies, and with a construction of the WPA “favoring the persons the Legislature intended to benefit.” Shallal, supra at 611. B. ADVERSE EMPLOYMENT ACTION We also hold that the trial court erred as a matter of law by implicitly ruling that plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim and that other bases, such as not getting a promotion or being threatened with employment action including discharge, were not sufficient. Plaintiff alleged, and supported by his deposition testimony, that Andrews referenced his September 2002 letter to the chief of police and told him to start looking for a job elsewhere if he kept “making waves” and wasting Andrews’s time. Viewed in the light most favorable to plaintiff, this allegation and evidence support inferences that defendant Andrews threatened plaintiff with discharge in retaliation for his September letter. 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 employ