e-Journal Summary

e-Journal Number : 70192
Opinion Date : 04/04/2019
e-Journal Date : 04/08/2019
Court : Michigan Court of Appeals
Case Name : Rivera v. SVRC Indus., Inc.
Practice Area(s) : Employment & Labor Law
Judge(s) : Boonstra, M.J. Kelly, and Servitto
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The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq.); Chandler v. Dowell Schlumberger Inc.; Henry v. Detroit; MCL 15.362; “Public body”; MCL 15.361(d)(i)-(vi); Prima facie case for retaliation under the WPA; Wurtz v. Beecher Metro. Dist.; Circumstantial evidence; Debano-Griffin v. Lake Cnty.; McDonnell-Douglas Corp. v. Green; McNeill-Marks v. MidMichigan Med. Ctr.-Gratiot; “About to report” claim; Shallal v. Catholic Soc. Servs. of Wayne Cnty.; Roulston v. Tendercare (MI), Inc.; Hays v. Lutheran Soc. Servs. of MI; “Actual report” claim; “Report”; Consulting a dictionary to define terms not defined by statute; Epps v. 4 Quarters Restoration, LLC; A lawyer as an agent; 1 Restatement Law Governing Lawyers, 3d, Introductory Note, p 124; Right to control agent’s conduct; St. Clair Intermediate Sch. Dist. v. Intermediate Educ. Ass’n/MI Educ. Ass’n; Causal connection; Temporal proximity alone; Unlawful retaliation in violation of Michigan public policy; Kimmelman v. Heather Downs Mgmt. Ltd.; Exclusivity of the remedies provided by the WPA


The court held that plaintiff did not establish a genuine issue of material fact as to whether she engaged in protected activity by being about to report a violation or suspected violation of law, and she did not report a violation for purposes of the WPA in her conversation with defendant-former employer’s attorney (M). Further, her unlawful retaliation in violation of public policy claim failed because it was duplicative of her WPA claims and the WPA’s remedies are exclusive. Thus, the court reversed the denial of defendant’s summary disposition motion and remanded for entry of summary disposition for defendant. Plaintiff was permanently laid off after she communicated statements she alleged an employee (LS) made during a meeting. As to her “about to report” claim, she offered no evidence she was about to report LS’s conduct to police. Her conduct was “more akin to that of the plaintiff in Hays than to that of the plaintiff in” Shallal. She did not, explicitly or implicitly, “threaten to report LS’s conduct.” While her text messages and deposition testimony showed “she believed that contacting the police was the correct course of action,” the record only showed that she discussed this option with various people “and conveyed her opinion.” It did not show that, after these consultations, she decided “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.” There also was no evidence defendant was put on notice she was about to do so. As to her “actual report” claim, although “practicing attorneys who are members of the State Bar of Michigan are considered members of a ‘public body’ under” the WPA, the court found that, in the context in which they were made, plaintiff’s communications with M did “not constitute ‘reporting’ under the WPA.” For purposes of the WPA, it held that “report” means “to make a charge against” or “to make known the presence, absence, condition, etc.” of something. Her discussion with M could not “reasonably be seen as ‘charging’ LS with illegal conduct,” and she did not make anything known to M that he did not already know by virtue of her “earlier communications with defendant.” Further, M was acting as defendant’s agent when she communicated with him.

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