Anzaldua v. Neogen Corp.

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM.
• Citation: Anzaldua v. Neogen Corp., 32 IER Cases 448, 292 Mich.App. 626, 808 N.W.2d 804 (Mich. App. 2011)
• Decision Date: 17 May 2011
• Docket Number: Docket No. 296978.
• Parties: ANZALDUA v. NEOGEN CORPORATION.

292 Mich.App. 626

32 IER Cases 448

808 N.W.2d 804

ANZALDUA

v.NEOGEN CORPORATION.

Docket No. 296978.

Court of Appeals of Michigan.

Submitted May 13, 2011, at Lansing.Decided May 17, 2011, at 9:20 a.m.

Pitt McGehee Palmer Rivers & Golden, P.C., Royal Oak, (by Robert W. Palmer and Beth M. Rivers), for Sharon Anzaldua.

Oade, Stroud & Kleiman, P.C., East Lansing, (by Ted W. Stroud), for Neogen Corporation.

Before: OWENS, P.J., and O'CONNELL and METER, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). Defendant cross-appeals, arguing that the trial court made an improper finding of fact when deciding its motion. We affirm.

I. FACTS AND PROCEEDINGS

This action arose from defendant's termination of plaintiff's employment in June 2007. In May and June 2007, defendant was in the process of establishing a laboratory for the manufacture of an equine botulism vaccine. The manufacture of this vaccine is regulated by federal and state agencies to avoid safety hazards and security breaches pertaining to the botulism organism used in the manufacturing process. Plaintiff had been selected as the Select Agent Program Alternate Responsible Official in defendant's Lansing facility. Under applicable regulations, no one could be admitted to the restricted laboratory areas (the Bot suite) without the presence and authorization of plaintiff or the primary responsible official. However, these restrictions were not to be in effect until defendant actually received the botulism agent in October 2007.

Plaintiff alleged that she was terminated from her employment with defendant in June 2007 in retaliation for her compliance with a state Department of Labor deputy boiler inspector, Al Ladd. Plaintiff had escorted Ladd through the facility when he arrived for an unannounced inspection on May 3, 2007. The inspector discovered an unregistered boiler in the facility and issued a citation requiring defendant to bring the boiler into conformity with state regulations. When the inspector returned on May 14, 2007, defendant's maintenance manager, Al Meredith, informed plaintiff that Meredith, not plaintiff, would escort Ladd through the facility for the inspection. Meredith instructed plaintiff not to talk to Ladd and to channel all communications through Meredith. Nonetheless, plaintiff accompanied Ladd to the Bot suit and cooperated with him when he asked questions about another unregistered boiler.

Plaintiff filed this action in May 2009, alleging a claim for retaliatory discharge in violation of public policy because she was terminated for complying with her statutory duty to grant Ladd access to the facility to inspect the boilers. Defendant moved for summary disposition under MCR 2.116(C)(7), (8), and (10), arguing that there was no genuine issue of material fact that plaintiff's claim arose under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. , that plaintiff had failed to state a cognizable claim independent of the WPA, and that plaintiff's claim was untimely under the WPA's 90–day limitations period, MCL 15.363. Plaintiff denied that she was engaged in protected activity under the WPA and maintained that she had pleaded a valid claim for retaliatory discharge contrary to public policy. The trial court agreed with defendant and granted its motion.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's ruling on a motion for summary disposition. Doe v. Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich.App. 632, 638, 692 N.W.2d 398 (2004). When reviewing a motion under MCR 2.116(C)(7), a reviewing court must consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings and evidence in favor of the nonmoving party. Id. “Absent a disputed question of fact, the determination whether a cause of action is barred by a statute of limitation is a question of law that this Court reviews de novo.” Id.

A motion brought under MCR 2.116(C)(8) tests whether the complaint states a claim as a matter of law. Teel v. Meredith, 284 Mich.App. 660, 662, 774 N.W.2d 527 (2009). In reviewing the motion, the court accepts as true all well-pleaded allegations and construes them in a light most favorable to the nonmoving party. Id. The motion should be granted if no factual development could possibly justify discovery. Id.

A motion under MCR 2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Driver v. Naini, 287 Mich.App. 339, 344, 788 N.W.2d 848 (2010). The nonmoving party may not rest on the allegations in the pleadings, but must set forth, through documentary evidence, specific facts demonstrating a genuine issue for trial. Id.

III. ANALYSIS

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. MCL 15.362; MCL 15.363; Shallal v. Catholic Social Servs. of Wayne Co., 455 Mich. 604, 610, 566 N.W.2d 571 (1997). The WPA provides that an employer shall not discharge or otherwise retaliate against an employee because the employee “reports or is about to report ... a violation or a suspected violation of a law or regulation” or because “an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body.” MCL 15.362. A prima facie case under the WPA arises when (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 adverse employment decision. Shaw v. City of Ecorse, 283 Mich.App. 1, 8, 770 N.W.2d 31 (2009).

The underlying purpose of the WPA is protection of the public. Dolan v. Continental Airlines/Continental Express, 454 Mich. 373, 378, 563 N.W.2d 23 (1997). 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 378–379, 563 N.W.2d 23. The WPA is a remedial statute and must be liberally construed to favor the persons that the Legislature intended to benefit. Chandler v. Dowell Schlumberger, Inc., 456 Mich. 395, 406, 572 N.W.2d 210 (1998). The WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity. Dudewicz v. Norris–Schmid, Inc., 443 Mich. 68, 70, 78–79, 503 N.W.2d 645 (1993), overruled in part on other grounds by Brown v. Detroit Mayor, 478 Mich. 589, 595 n. 2, 734 N.W.2d 514 (2007). However, if the WPA does not apply, it provides no remedy and there is no preemption. Driver v. Hanley (After Remand), 226 Mich.App. 558, 566, 575 N.W.2d 31 (1997).

The WPA imposes a 90–day limitations period for a civil action arising from a violation of the act. MCL 15.363(1). In determining whether a statute of limitations applies, this Court looks to the true nature of a complaint, reading the complaint as a whole and looking beyond the parties' labels to determine the exact nature of the claim. Adams v. Adams ( On Reconsideration ), 276 Mich.App. 704, 710–711, 742 N.W.2d 399 (2007). Accordingly, a plaintiff asserting a claim for termination in violation of public policy that arises from circumstances that establish a claim for relief under the WPA will be subject to the WPA's exclusive remedy and will not be permitted to evade the 90–day limitations period by recasting the claim as a public-policy claim.

Plaintiff argues that she was not engaged in protected activity under the WPA with respect to the boiler inspection because she was not requested by a public body to participate in an “investigation” or “inquiry” as those terms are used in the WPA. The WPA defines a “public body” as including “[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.” MCL 15.361(d)( i ). The deputy boiler inspector, as a state officer, thus falls within the definition of a public body under the WPA. However, plaintiff characterizes Ladd's boiler inspection as a “routine inspection” that cannot be classified as an investigation or inquiry under the WPA. The WPA does not define the terms “investigation” or “inquiry.” Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. Halloran v. Bhan, 470 Mich. 572, 578, 683 N.W.2d 129 (2004).

Black's Law Dictionary (8th ed.), p. 844, defines “investigate” as “[t]o inquire into (a matter) systematically” or “[t]o make an official inquiry.” It defines “inquiry” in the context of parliamentary law as “[a] request for information, either procedural or substantive” and in the context of international law as fact-finding. Id. at 808. Random House Webster's College Dictionary (2000) defines “inquiry” as “1. a seeking or request for truth, information, or knowledge. 2. an investigation, as into an incident. 3. a question; query.” The general dictionary definition of “inquiry” meshes with the legal dictionary's definition of the term “administrative search,” which is defined in Black's Law Dictionary (8th ed.), p. 1378, as “[a] search of public or commercial premises carried out by a regulatory authority for the purpose of enforcing compliance with health, safety, or security regulations.” The activity of an administrative search thus involves an inquiry as defined in Random House Webster's College Dictionary as a seeking or request for truth, information, or...