PACE v. EDEL-HARRELSON
Case Details
- Citation
- 309 Mich. App. 256
- Judge(s)
- Before: SHAPIRO, P.J., and GLEICHER and RONAYNE Krause, JJ.; Gleicher and RONAYNE KRAUSE, JJ., concurred with Shapiro, P.J.
- Procedural Posture — the stage the case had reached
- appeal
- State
- Michigan
Related Laws
No specific laws identified for this ruling.
Claim Types
Outcome
The Court of Appeals reversed the trial court's summary disposition on the Whistleblowers' Protection Act claim, finding a genuine issue of material fact regarding causation between the employee's protected reporting of suspected embezzlement and her termination. The court affirmed summary disposition on the alternative public-policy discharge claim because the WPA provided the exclusive remedy.
Excerpt
PACE v EDEL-HARRELSON Docket No. 319223. Submitted January 9, 2015, at Lansing. Decided February 24, 2015, at 9:00 a.m. Leave to appeal sought. Barbara Pace brought an action in the Eaton Circuit Court against Jessica Edel-Harrelson, Christy Long, and SIREN/Eaton Shelter, Inc. (SIREN), claiming that she was discharged in violation of public policy and the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff had worked for SIREN. Plaintiff alleged that while she was employed there, Long, who was a coworker, told her that she intended to use grant funds that SIREN had received for other purposes to purchase a stove for Long’s daughter. Plaintiff claimed that she reported this conversation to her superiors at SIREN, including Edel-Harrelson, SIREN’s executive director. Edel-Harrelson later fired plaintiff, claiming the termination was based on unrelated misconduct by plaintiff. Plaintiff filed suit alleging that she was terminated because she reported Long’s alleged intent to misuse the grant funds. Defendants moved for summary disposition under MCR 2.116(0(10). The court, Conrad J. Sindt, J., granted defendants’ motion. Plaintiff appealed. The Court of Appeals held: 1. Under MCL 15.362, an employer shall not discharge, threaten, or otherwise discriminate against an employee because the employee reports or is about to report a violation or a suspected violation of a law to a public body. To establish a prima facie case under the statute, 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. With regard to whether plaintiff engaged in protected conduct, plaintiff allegedly reported a suspected violation of Michigan’s embezzlement statute, MCL 750.174. Plaintiff’s deposition testimony was sufficient to permit a jury to conclude that plaintiff reasonably suspected a violation of law, whether the violation was completed or actively planned. Defendants also contended that plaintiff could not establish a causal connection between her alleged protected activity and her discharge. Establishing causation in a WPA claim requires application of the burden-shifting analysis articulated in McDonnell Douglas Corp v Green, 411 US 792 (1973). In this case, the basis for plaintiff’s termination was a disputed factual issue. The weight to be given to the conflicting evidence presented a question for the finder of fact. Accordingly, the trial court erred by granting summary disposition in favor of defendants on plaintiffs WPA claim. 2. The WPA provides the exclusive remedy for retaliatory-discharge claims and consequently preempts common-law public-policy claims arising from the same activity. However, if the WPA does not apply, it provides no remedy and there is no preemption. Because plaintiff established her prima facie case under the WPA, the trial court correctly granted summary disposition in favor of defendants on plaintiffs discharge against public policy claim, albeit for the wrong reason. Trial court’s grant of summary disposition in favor of defendants on plaintiffs WPA claim reversed; trial court’s grant of summary disposition in favor of defendants on plaintiffs claim of discharge against public policy affirmed. Actions — Whistleblowers’ Protection Act — Protected Activity — Reporting Suspected Violations of Law. Under MCL 15.362 of the Whistleblowers’ Protection Act, an employer shall not discharge, threaten, or otherwise discriminate against an employee because the employee reports or is about to report a violation or a suspected violation of a law to a public body; to establish a prima facie case under the statute, 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; protected activity includes reporting a suspected a violation of law, whether the violation has been completed or is actively planned. Law Offices of Lisa C. Ward, PLLC (by Lisa C. Ward and Nicole J. Schmidtke), for plaintiff. Nemier, Mathieu & Johnson, PLLC (by Mark R. Johnson and Michelle E. Mathieu), and Foley & Mansfield, PLLP (by Greg M. Meihn and Melinda A. Balian), for defendants. Before: SHAPIRO, P.J., and GLEICHER and RONAYNE Krause, JJ. SHAPIRO, P.J. In this employment termination case, plaintiff Barbara Pace appeals by right the trial court order granting summary disposition in favor of defendants under MCR 2.116(0(10) (no genuine issue of material fact) on plaintiffs two claims: (1) that her employment was terminated in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and, alternatively, (2) that her discharge was against public policy. For the reasons discussed in this opinion, we reverse the trial court’s grant of summary disposition on the WPA claim, but affirm the trial court’s grant of summary disposition on the claim of discharge against public policy. I. FACTS Defendants in this action are: SIREN/Eaton Shelter, Inc. (SIREN), an organization devoted to helping domestic violence victims and the homeless in Eaton County; Jessica Edel-Harrelson, SIREN’s executive director; and Christy Long, a SIREN caseworker, who was one of plaintiffs former coworkers. In January 2012, plaintiff was terminated from her position as a domestic violence transitional supportive housing coordinator and advocate with SIREN. In this position, plaintiff was responsible for using state grant funds to assist domestic violence victims in finding permanent housing as well as providing other services. Plaintiff was allowed to use grant funds to purchase housing items for SIREN clients. Plaintiff testified that when she purchased a housing item for a client using grant funds, she wrote the client’s name on the back of the receipt and submitted the receipt to Long. Plaintiff stated that Long was in charge of tracking the expenditures related to each grant. Plaintiff testified that, in August 2011, she became concerned about what she viewed as discrepancies in grant records; she believed that grant money was being used to make unauthorized purchases. Plaintiff claimed that she discussed her concerns with Edel-Harrelson. However, Edel-Harrelson testified that no such discussion ever took place. She did acknowledge that plaintiff asked her for “clarification” concerning alleged grant discrepancies. Plaintiff testified that, on December 9, 2011, Long came to her and stated that she knew there was money remaining in a certain grant fund. Plaintiff stated that Long told her that Long’s daughter needed a new stove but could not afford one. Plaintiff claimed that Long then told her she was going to use grant money to purchase the stove for her daughter; plaintiff felt that Long implied that plaintiff should document the transaction in an attempt to cover up the unauthorized purchase. At her deposition, Long denied ever using grant funds for this purpose, or indeed ever discussing such a purchase with plaintiff. Plaintiff testified that, following this conversation with Long, she immediately contacted Nancy Oliver, Edel-Harrelson’s predecessor as the director of SIREN, to discuss the situation. Oliver suggested that plaintiff contact her supervisors, Carol Chandler and Martha Miller. According to plaintiff, she called Chandler and spoke with her for approximately 45 minutes, after which Chandler stated that she would report the matter to Miller and take care of the situation. Plaintiff stated that this procedure observed SIREN’s chain of command for reporting such issues. Plaintiff testified that she was unsatisfied with the lack of action and so, in late December 2011 or early January 2012, she reported her suspicions directly to Edel-Harrelson. She stated that, at that time, she believed that Long had already purchased the stove with grant funds. Plaintiff claimed that Edel-Harrelson told her that she would look into the matter and discuss it with Chandler and Miller. However, in her deposition, Edel-Harrelson claimed to have no recollection of this discussion with plaintiff. Edel-Harrelson also testified that she had not been approached by Chandler or Miller regarding plaintiffs claim; indeed, she stated that she had no knowledge of the alleged conversation between plaintiff and Long. Edel-Harrelson did eventually investigate plaintiffs claim against Long and found no wrongdoing; however, that investigation occurred only after plaintiff filed her complaint in the instant action in April 2012. On January 18, 2012, plaintiffs employment with SIREN was terminated after ten years of what she characterizes as “loyal service and a spotless employment record . . . .” In this action, plaintiff alleges that her employment was illegally terminated for reporting Long’s violation or planned violation of law to Edel-Harrelson. Plaintiff also claimed that her reporting resulted in harassment, which she identified as “snide comments” and “eye piercing dirty looks” from a former SIREN employee who had returned to volunteer, and Long being rude to her when she asked about vision insurance. SIREN’s stated reason for terminating plaintiffs employment was plaintiffs own allegedly harassing and intimidating behavior toward a fellow employee. A letter addressed to plaintiff from Edel-Harrelson, dated January 22, 2012, states in relevant part: I regret to inform you that you are released from employment with SIREN/Eaton Shelter effective January 21, 2012. The reason for your termination is as follows: On Thursday, January 12, 2012, you engaged in behavior that resulted in fear and intimidation in co-workers, and which was witnessed by three employees. This behavior is in direct violation of SIREN/Eaton Shelter’s policy Section 13.2, 13.2 Sub-section 6, and Section 13.3. As outlined in the agency policies, Section 13.2 states that conduct which may jeopardize personal safety, security or the welfare of the agency or its employees is prohibited. Any type of workplace violence or intimidation committed by employees will not be tolerated. Subsection 6 states that employees shall refrain from aggressive or hostile behavior that frightens, distresses, or creates reasonable fear of injury to another person. Section 13.3 states that all employees are entitled to a work environment free from behavior that is disruptive or that interferes with employee ability to perform their duties. Defendants presented evidence to support this reason for plaintiffs termination. On or about January 10, 2012, plaintiff, in the presence of witnesses, made an inappropriate comment to a coworker. Plaintiff admitted making the comment as a joke. When Carol Hatch, a coworker who witnessed the comment, told plaintiff that the remark had been inappropriate, plaintiff asked if Hatch wished to go “toe to toe” with her. The incident was reported to Miller, plaintiffs supervisor, who discussed the incident the next day with Edel-Harrelson. Edel-Harrelson testified that she originally advised Miller to proceed with a formal write-up, but upon further consideration, directed Miller to issue plaintiff a verbal warning. According to Edel-Harrelson, Miller met with plaintiff on January 12, 2012, to deliver the verbal warning. Edel-Harrelson testified that plaintiff became angry and walked out of the meeting. After leaving the meeting, plaintiff apparently approached Hatch in the case managers’ office. Hatch averred that in the presence of two other case managers, Cheryl Tisdale and Elaine Shegitz, plaintiff “came into my office space . . . toward me with clenched fists, aggressively.” Hatch stated that plaintiff “said to me T hope you’re happy, I just quit because of you.’ She kicked the boxes inside the doors, twice, very hard, and I thought she was going to come toward me. I responded to her comment, ‘No, I’m afraid.’ ” Hatch then took the rest of the day off, as well as the following day, “because I was feeling very shaken, threatened and vulnerable to attack by [plaintiff]’s rage toward me.” Shegitz averred that plaintiff “stomped into the office, angry, with her hands clenched” and “glared” at Hatch, saying “something to [Hatch] along the lines of ‘Thanks a lot....’ ” However, Shegitz did not state that plaintiff kicked boxes or physically advanced on Hatch. Plaintiff categorically denied that she engaged in any physically intimidating behavior; indeed, she denied that she ever went into Hatch’s work area after the meeting. After the meeting about the verbal warning, plaintiff acknowledged that she was “upset” and walked back to her office and “slammed [her] door.” She denied that she threw or kicked anything. After consulting with SIREN’s personnel committee, Edel-Harrelson decided to terminate plaintiffs employment for the reasons cited in the January 22, 2012 letter. Plaintiff was informed of her firing in a meeting with Edel-Harrelson and Miller on January 18, 2012, and her employment was formally terminated on January 21, 2012. On April 12, 2012, plaintiff brought the instant action, alleging two counts: that her termination was in violation of the WPA and constituted a retaliatory discharge in violation of public policy. On August 21, 2013, defendants moved for summary disposition, arguing that plaintiff could not establish a prima facie case under the WPA because (1) no conduct had occurred that could be considered a violation or suspected violation of law and, therefore, plaintiff had not engaged in protected activity, and (2) plaintiff could not establish a causal connection between her alleged report of a suspected violation of law and her termination. Defendants further argued that there was no applicable public policy basis to support plaintiffs claim of discharge against public policy. On November 6, 2013, the trial court granted summary disposition in favor of defendants, ruling that plaintiff failed to establish that a violation or suspected violation of law occurred and that there was no public policy basis on which to assert her claim of discharge against public policy. II. WHISTLEBLOWERS’ PROTECTION ACT Plaintiff argues that the trial court erred by granting defendants’ motion for summary disposition on her WPA claim. We agree. “The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body.” Anzaldua v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011). “The underlying purpose of the WPA is protection of the public. The statute meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.” Id. at 631 (quotation marks and citations omitted). Additionally, “[t]he WPA is a remedial statute and must be liberally construed to favor the persons that the Legislature intended to benefit.” Id. 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, 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. [Emphasis added.] “ ‘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.’ ” Shaw v Ecorse, 283 Mich App 1, 8; 770 NW2d 31 (2009), quoting West v Gen Motors Corp, 469 Mich 177, 183-184; 665 NW2d 468 (2003). In this case, it is undisputed that plaintiff was discharged from her employment, thus satisfying the second element. A. PROTECTED ACTIVITY In their motion for summary disposition, defendants argued, and the trial court later agreed, that plaintiff had not engaged in protected activity because, at most, she reported a “possible future violation” of the law, not a “violation or a suspected violation” of law and that, even taking plaintiffs deposition testimony as true, Long merely announced her intention to commit a violation of law in the future, which was insufficient to constitute either the crime of embezzlement or attempted embezzlement. Contrary to the parties’ contention, this case does not present an issue of first impression. In Debano-Griffin v Lake Co, 486 Mich 938 (2010), the Supreme Court reversed this Court’s opinion holding that the plaintiff had not engaged in protected activity under the WPA. See Debano-Griffin v Lake Co, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2009 (Docket No. 282921). In that case, the plaintiffs employment was terminated after she reported what she believed were unlawful transfers of county funds from an ambulance fund into a 911 fund. Id. at 1-2. This Court concluded that the plaintiff had not engaged in “protected activity,” writing: Because plaintiff had only a subjective belief that defendants’ activities or suspected activities violated unspecified “governing .rules” (which may indeed have just been the suggestions of 911 directors she had been in contact with on how to make sure ambulance service was efficiently provided), and because she could not identify what law, rule, or regulation had been violated by the movement of funds from the ambulance account to another county account, she failed to establish the prima facie elements of a claim under the WPA. [Id. at 4.] In lieu of granting the plaintiffs application for leave to appeal, the Supreme Court reversed, writing: The Court of Appeals erred in holding that the plaintiff was not engaged in protected activity under the Whistle-blowers Protection Act (WPA), MCL 15.361 et seq. Reporting a “suspected violation of a law” is protected activity. MCL 15.362. MCL 211.24f(2)(d) requires the ballot to include “[a] clear statement of the purpose for the millage.” In City of South Haven v Van Buren Co Bd of Comm’rs, 478 Mich 518, 533 n 23, 534 [734 NW2d 533] (2007), this Court, relying on this statutory language, held that “funds derived from levies must be used for the purpose stated in the ballot,” and that using such funds for another purpose would “violate the law.” See also, MCL 750.489; MCL 750.490; MCL 141.439. Accordingly, when the plaintiff reported her concerns that the ambulance funds were being used for purposes other than those stated in the ballot, the plaintiff was reporting a “suspected violation of a law,” and, thus, was engaged in protected activity. Because the plaintiff reported a suspected violation of an actual law, it is unnecessary to address whether the reporting of a suspected violation of a suspected law constitutes protected activity. [Debano-Griffin, 486 Mich at 938.] As in Debano-Griffin, this case does not involve a suspected violation of a suspected law. It concerns a suspected violation of an actual law. Defendants do not argue that if Long purchased a stove for her daughter with grant funds (or took sufficient steps to constitute an attempt of such a purchase), she would not have committed the crime of embezzlement (or attempted embezzlement). See MCL 750.174. This case then turns on whether plaintiff r
Similar Rulings
Browse Related
Facing something similar at work?
Court rulings like this one are useful, but every situation is different. Take 2 minutes to see which laws may protect you — it's free, private, and no account is required to start.
This ruling information is sourced from public court records via CourtListener.com. Case outcomes, claim types, and summaries are extracted using AI analysis and may be incomplete or inaccurate. It is provided for informational and educational purposes only and does not constitute legal advice.
See something wrong, or named in this ruling and want it corrected or redacted? Request a correction.