Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C h i e f J u s ti c e J u s t ic e s Maura D. Corrigan Michael F. Cavanagh
Opinion Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman ____________________________________________________________________________________________________________________________
FILED JULY 22, 2003
CALVIN WEST and MARGO ANN WEST,
Jointly and Severally,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 121003
GENERAL MOTORS CORPORATION, RANDY
KOYAL, KEVIN SPARKS and JOHN TATE,
Jointly and Severally,
Defendants-Appellants
and Cross-Appellees,
and
JIM REEVES,
Defendant.
__________________________________
PER CURIAM
The circuit court granted defendant General Motors’
motion for summary disposition and dismissed plaintiff’s1
complaint, which alleged a count under the Whistleblowers’
Protection Act, MCL 15.361 et seq., and counts of assault and
1 Plaintiff Margo Ann West’s derivative claim is for loss
of consortium. For ease of reference, in this opinion we
refer to plaintiff in the singular.
battery, wrongful discharge, race discrimination, retaliation
for reporting acts of discrimination, and loss of consortium.
The Court of Appeals reversed the dismissal of plaintiff’s
whistleblower count and affirmed the remainder of the circuit
court’s ruling.
Defendant2 seeks to appeal the part of the Court of
Appeals decision reinstating plaintiff’s whistleblower count,
while plaintiff seeks to cross-appeal the part of the Court of
Appeals decision that affirmed the dismissal of the balance of
his complaint. Because plaintiff failed to come forward with
evidence supporting the causation element of his whistleblower
claim, we reverse that aspect of the Court of Appeals decision
and reinstate the circuit court’s order of summary disposition
in favor of defendant. We have also considered plaintiff’s
application for leave to cross-appeal, and that application is
denied because we find no merit in the issues raised by
plaintiff.
I
Plaintiff Calvin West worked as a maintenance supervisor
for defendant General Motors. He was a salaried employee and
was responsible for completing his own time sheet. Plaintiff
was warned several times in 1996 and in February 1997 about
2 Defendant General Motors is the only defendant involved
in this appeal.
2
misrepresenting the time he actually worked. Nevertheless,
plaintiff reported four extra hours of overtime on his time
sheet for May 22, 1997. His supervisors learned of this
overstatement and, after an investigation, plaintiff was
disciplined on June 4, 1997. Plaintiff was prohibited from
working any overtime, and he was required to use the salaried
employee entrance and to “swipe” his identification badge at
the entrance each time he entered or left the plant. In
addition, plaintiff was advised, orally and in writing, that
reporting time that was not actually worked constituted
fraudulent conduct and could result in termination of his
employment.
Effective August 11, 1997, plaintiff was transferred from
the morning shift to the afternoon shift.3 Plaintiff
accordingly worked for different supervisors. In September
1997 plaintiff was again allowed to work overtime. On October
16, 1997, plaintiff reported two hours of overtime that he did
not work. An investigation of this incident led to the
termination of plaintiff’s employment on January 8, 1998,
because of plaintiff’s repeated violations of the employer’s
3
According to defendant, plaintiff was transferred to
the afternoon shift because the morning shift required a
maintenance supervisor who could work overtime.
3
policies for reporting time worked.4
While plaintiff was still working on the morning shift,
an incident occurred on May 4, 1997, involving a union
committee person named Jim Reeves. Plaintiff entered a room
where Reeves and others were in conference. When plaintiff
did not leave the room as Reeves ordered, there was physical
contact between plaintiff and Reeves. Plaintiff claims that
he was shoved by Reeves; Reeves claims that when he stood up
from his desk his stomach brushed plaintiff.
Plaintiff reported to plant security that Reeves had
assaulted him. In addition, plaintiff claims he telephoned
the Romulus police and reported the assault.5 Plaintiff also
asserts that he advised his immediate supervisor, Randall
Koyal, and his area supervisor, John Tate, that he had
reported the assault to the police. Plaintiff characterized
Koyal’s response to being told about the report to the police
4 Plaintiff initially acknowledged that he had not worked
the overtime on October 16, but said he had worked it the next
day. Later, he asserted that he actually worked the overtime
hours that he reported on October 16 on that date. However,
his supervisor stated that plaintiff left after completing an
eight hour shift and did not return. In addition, no one else
saw plaintiff during the two hours at issue.
5
According to plaintiff, the police told him to file a
written complaint. Plaintiff never filed such a complaint,
nor did he otherwise follow up with the police.
4
as “nonchalant.”6 Plaintiff said that he could not discern
Tate’s response upon learning that plaintiff had contacted the
police, but Tate seemed to be upset that the incident between
plaintiff and Reeves had occurred.7
In his complaint, plaintiff claimed that his rights under
the Whistleblowers’ Protection Act were violated because he
was retaliated against and discriminated against for reporting
the Reeves assault to the police. Plaintiff’s complaint
alleged that after the report, both Tate and Koyal treated him
differently and retaliated by, among other things, unfairly
accusing him of time-sheet violations, transferring him to a
different shift, and terminating his employment. The circuit
court granted defendant summary disposition regarding this
count, reasoning that plaintiff did not establish a prima
facie case because he failed to present evidence of a causal
connection between his report to the Romulus police and any
adverse employment action.8 The circuit court also concluded
6 Koyal testified at his deposition that he did not learn
that plaintiff called the police until he received notice of
this lawsuit.
7 At his deposition, Tate recalled plaintiff being upset
about the incident with Reeves, but Tate was not asked about
whether plaintiff said anything about making a report to the
police.
8
The adverse employment actions specifically discussed
by the circuit court were (1) the “overtime restriction”
imposed in June 1997, (2) the transfer to the afternoon shift,
and (3) the decision to terminate employment.
5
that, even if plaintiff had established a prima facie case,
the employer had shown a legitimate reason for its actions.
The Court of Appeals found that a factual issue existed
regarding whether there was a causal connection between
plaintiff’s telephone call to the Romulus police and the
subsequent adverse employment actions. The Court accordingly
reversed the summary-disposition order and remanded the case
for further proceedings on plaintiff’s whistleblower count.
The Court of Appeals did not address the circuit court’s
finding that there were legitimate reasons for the employment
actions.
II
Defendants’ summary-disposition motion regarding the
whistleblower claim was brought under MCR 2.116(C)(10) (no
genuine issue of material fact). Appellate review of the
grant or denial of a summary-disposition motion is de novo,
and the court views the evidence in the light most favorable
to the party opposing the motion. Maiden v Rozwood, 461 Mich
109, 118, 120; 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
6
upon which reasonable minds might differ. Shallal v Catholic
Social Services of Wayne Co, 455 Mich 604, 609; 566 NW2d 571
(1997); Quinto v Cross & Peters Co, 451 Mich 358, 369; 547
NW2d 314 (1996).
III
Plaintiff’s whistleblower claim is brought under MCL
15.362, which states:
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.
To establish a prima facie case under this statute, a
plaintiff must show that (1) the plaintiff was engaged in
protected activity as defined by the act,9 (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. Chandler v Dowell
Schlumberger, Inc, 456 Mich 395, 399; 572 NW2d 210 (1998);
9
For the purpose of this opinion, we assume without
deciding that plaintiff called the Romulus police, and that
doing so is a protected activity. See Dudewicz v Norris
Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993).
7
Shallal, supra at 610.
Plaintiff claims that, because of his report to the
police, he was disciplined when he was barred from overtime,
required to swipe his identification badge, transferred to the
afternoon shift, and discharged. However, our review of the
record reveals no evidentiary support from which a reasonable
jury could find a causal connection between plaintiff’s report
to the police and these employment actions.
Plaintiff’s case rests on the factual point that he
advised supervisors Koyal and Tate that he had reported the
assault to the police. That assertion, by itself, is not
enough to raise a reasonable inference that plaintiff was
retaliated against or discriminated against on the basis of
the report. It does nothing to establish a causal nexus
between plaintiff’s contacts with his supervisors and any
subsequent employment action.
Summary disposition for the defendant is appropriate when
a plaintiff cannot factually demonstrate a causal link between
the protected activity and the adverse employment action. For
example, in Shallal, the plaintiff failed to establish the
necessary causal connection because she knew her discharge was
imminent before the protected activity on which she based her
whistleblower claim, and in Roberson v Occupational Health
Centers of America, Inc, 220 Mich App 322; 559 NW2d 86 (1996),
8
the plaintiff failed to show a causal connection because the
evidence did not show that the employer knew about the
plaintiff’s filing of a complaint with the Occupational Safety
and Health Administration until after she was discharged.
The most that plaintiff demonstrates here is that he was
disciplined, and eventually discharged, after he reported to
the police that Reeves had assaulted him. To prevail,
plaintiff had to show that his employer took adverse
employment action because of plaintiff’s protected activity,
but plaintiff has merely shown that his employer disciplined
him after the protected activity occurred. Plaintiff had to
demonstrate that the adverse employment action was in some
manner influenced by the protected activity, but has failed to
make such a demonstration. The evidence does not show that
either of the supervisors, whom plaintiff allegedly informed
about the call to the police, viewed the call as a matter of
any consequence. Nor was either supervisor involved in the
decision to discharge plaintiff.10 There is no evidence that
Koyal or Tate gave even a second thought to plaintiff’s report
to the police. Plaintiff did not recall Tate saying anything
when he learned about the police report, although he did seem
10
After he was transferred, and at the time he reported
the unworked overtime leading to his discharge, plaintiff was
working under a different supervisor. Thus, it cannot be
assumed that Koyal and Tate were involved in the decision to
terminate plaintiff’s employment.
9
upset that the incident with Reeves occurred, and plaintiff
testified that Koyal’s reaction was “nonchalant.”
Although the employment actions about which plaintiff
complains occurred after his report to the police, such a
temporal relationship, standing alone, does not demonstrate a
causal connection between the protected activity and any
adverse employment action. Something more than a temporal
connection between protected conduct and an adverse employment
action is required to show causation where discrimination
based retaliation is claimed.11 Nguyen v City of Cleveland,
229 F3d 559 (CA 6, 2000) (retaliation for claim of
discrimination based on national origin); Scroggins v Univ of
Minnesota, 221 F3d 1042 (CA 8, 2000) (retaliation for race
discrimination claim); Cooper v North Olmsted, 795 F2d 1265
(CA 6, 1986) (retaliation for race- and sex-discrimination
claims); Taylor v Modern Engineering, Inc, 252 Mich App 655,
662; 653 NW2d 625 (2002) (retaliation for alleged
whistleblower activity). Plaintiff must show something more
than merely a coincidence in time between protected activity
and adverse employment action.12
11 Plaintiff’s whistleblower claim is analogous to an
antiretaliation claim based on other prohibited kinds of
employment discrimination. Shallal, supra at 617.
12 Relying merely on a temporal relationship is a form of
engaging in “the logical fallacy of post hoc ergo propter hoc
(after this, therefore in consequence of this)” reasoning.
10
A case in which a close temporal relationship supported
the plaintiff’s claim is Henry v Detroit, 234 Mich App 405;
594 NW2d 107 (1999). But unlike plaintiff, the plaintiff in
Henry also presented evidence that his superior expressed
clear displeasure with the protected activity engaged in by
the plaintiff. In contrast to Henry, plaintiff has not shown
any reaction or conduct on the part of his supervisors that
reasonably suggests that they were upset by the fact that
plaintiff reported an assault to the police. Moreover,
contrary to the view of the Court of Appeals, the evidence
does not show that plaintiff’s record was “impeccable” or
“unblemished” before the Reeves incident or that the
discipline imposed was seemingly undeserved as it was in
Henry.13 The fact that a plaintiff engages in a “protected
activity” under the Whistleblowers’ Protection Act does not
immunize him from an otherwise legitimate, or unrelated,
adverse job action.
The only evidence plaintiff has shown other than the
temporal sequence of events is that one of the two supervisors
he notified was nonchalant. This does not amount to evidence
Rogers v Detroit, 457 Mich 125, 168; 579 NW2d 840 (1998)
(TAYLOR , J., dissenting), majority opinion overruled by
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000).
13 Unpublished opinion per curiam, issued January 25, 2002
(Docket No. 224408), pp 1, 4.
11
from which a reasonable juror could conclude that any adverse
employment action directed at plaintiff was related to the
police report lodged by plaintiff.
With regard to the employment-discharge decision in
particular, plaintiff has presented no evidence connecting his
discharge to his report to the police. There is no evidence
that the persons conducting the investigation that led to
plaintiff’s discharge or the persons who made the discharge
decision were even aware that plaintiff called the police.
The supervisors (Koyal and Tate), whom plaintiff claims he
told about the police report, were not involved in the
discharge decision.
The Court of Appeals erred in finding that contested
facts and permissible inferences present a factual issue for
a jury in this case.14 There is nothing more than pure
conjecture and speculation to link plaintiff’s call to the
police to any subsequent adverse employment action.15
14
As the preceding analysis makes clear, under the
applicable standard, which requires us to view the evidence in
the light most favorable to plaintiff, plaintiff has failed to
establish a prima facie claim because he has not demonstrated
a causal connection—an essential element of a claim under the
Whistleblowers’ Protection Act—between the protected activity
and the adverse employment action.
15
To the extent that the Court of Appeals rested its
decision on its interpretation of the principle that “remedial
statutes are to be liberally construed in favor of the persons
intended to be benefitted,” we simply note that our obligation
is to accurately construe a statute according to its terms and
12
IV
Plaintiff did not present evidence that would allow a
reasonable juror to find a causal connection between the
police report made by plaintiff and the subsequent employment
decisions affecting plaintiff. Plaintiff therefore failed to
establish a prima facie case under the Whistleblowers’
Protection Act. We reverse in part the judgment of the Court
of Appeals and reinstate the circuit court order granting
defendant summary disposition on plaintiff’s whistleblower
claim. In all other respects the Court of Appeals decision is
affirmed. MCR 7.302(F)(1).
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
that “liberally construing” a statute does not transform mere
speculation into a genuine issue of material fact.
13
S T A T E O F M I C H I G A N
SUPREME COURT
CALVIN WEST and MARGO ANN WEST,
jointly and severally,
Plaintiffs-Appellees,
Cross-Appellants,
v No. 121003
GENERAL MOTORS CORPORATION, RANDY
KOYAL, KEVIN SPARKS, and JOHN TATE,
jointly and severally,
Defendants-Appellants,
Cross Appellees,
and
JIM REEVES,
Defendant.
___________________________________
KELLY, J. (dissenting).
The majority holds that plaintiff presented insufficient
evidence to support his claim under the Whistleblowers’
Protection Act (WPA), MCL 15.362. In my view, quite the
contrary is true. Plaintiff presented entirely sufficient
evidence to reach the jury on this claim. Therefore, I
dissent.
I
When reviewing a ruling on a defendant's motion for
summary disposition, we must view the evidence in the light
most favorable to the plaintiff, the nonmoving party. Maiden
v Rozwood, 461 Mich 109; 597 NW2d 817 (1999). The majority
articulates, but neglects to follow, this mandate in ruling
for defendant.
To satisfy the elements of his claim, plaintiff must
present evidence that (1) he was engaged in protected activity
as defined by the act, (2) he was discharged or discriminated
against, and (3) a causal link exists between the protected
activity and the discharge or adverse employment action. The
majority concedes that plaintiff established the first two
elements, but holds that he has not established the third,
causation. Ante at 8.
One method of determining whether an element has been
established is to ask if a party has raised a material
question of fact about it. The majority acknowledges that
"[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." Ante at 6, citing Shallal v Catholic Social Services
of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997); Quinto v
Cross & Peters Co, 451 Mich 358, 369; 547 NW2d 314 (1996).
In this case, the record reveals several allegations from
which, if they were to be proven, a factfinder could infer
2
causation. First, defendant did not discharge plaintiff until
after he "blew the whistle" by reporting the shoving incident
to the police. Defendant premised plaintiff's termination of
employment on his time sheet problems. Plaintiff had a nearly
perfect thirty-year employment history with defendant.
However, during the year preceding the whistleblowing,
defendant had grown concerned about plaintiff's time sheet
errors. Nonetheless it took no action. Then, after the
whistleblowing, for the first time, defendant acted against
plaintiff allegedly because of the time sheet problems. The
lack of action preceding the police report supports an
inference that the report caused the adverse employment
actions taken afterward.
Second, plaintiff denied that the time sheet that led to
his firing contained overtime that he did not work. If the
trier of fact should find that plaintiff did work the two
hours in question, it follows that plaintiff was wrongfully
discharged. It could be validly inferred that the wrongful
discharge constituted retaliatory action against plaintiff for
his whistleblowing. Also, a wrongful discharge shows that
there was not the legitimate, nondiscriminatory reason for
firing plaintiff that defendant asserts existed.
II
The majority sidesteps the evidence that constitutes the
3
issues of fact by construing the facts in the light most
favorable to defendant. Construing them correctly, in
plaintiff's favor, it becomes evident that a question of fact
about causation exists in this case. Accordingly, I would
affirm the unanimous decision of the Court of Appeals to
reverse the summary disposition on the whistleblower count and
remand the case to the trial court.
Marilyn Kelly
Michael F. Cavanagh
4