Berg v. Tittabawasee Twp.

• Decision Date: 21 December 2021
• Docket Number: 355404
• Court: Court of Appeal of Michigan — District of US
• Parties: BRIAN BERG, Plaintiff-Appellant, v. TITTABAWASEE TOWNSHIP and POLICE CHIEF DENNIS GREEN, individually, Defendants-Appellees.

BRIAN BERG, Plaintiff-Appellant,
v.
TITTABAWASEE TOWNSHIP and POLICE CHIEF DENNIS GREEN, individually, Defendants-Appellees.

No. 355404

Court of Appeals of Michigan

December 21, 2021

UNPUBLISHED

Saginaw Circuit Court LC No. 20-042173-CD-1

Before: Markey, P.J., and Beckering and Boonstra, JJ.

PER CURIAM.

Plaintiff appeals by right the trial court's order granting defendants' motion for summary disposition under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

Plaintiff was employed by defendant Tittabawassee Township (the township) as a police officer and detective from 2008 to 2018. Plaintiff initially held a part-time position with the township's police department, but in April 2018, plaintiff accepted a full-time position. In 2017 and 2018, plaintiff was involved in the investigation of a Catholic priest, Father Robert DeLand. In October 2018, plaintiff's employment was terminated.

In May 2020, plaintiff filed suit against defendants, alleging wrongful termination in violation of Michigan's public policy, wrongful termination in violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and violation of the Elliott-Larson Civil Rights Act (ELCRA). Specifically, plaintiff alleged that he had been fired for refusing to cease his

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investigation of Father DeLand^[1] despite pressure, and eventually orders, from defendant Police Chief Dennis Green (Chief Green) to do so.

Defendants answered, denying that plaintiff was terminated (or that he had otherwise suffered an adverse employment action) in retaliation for pursuing the DeLand investigation. Defendants then moved for summary disposition under MCR 2.116(C)(8), arguing that plaintiff's WPA claim was barred by the applicable statute of limitations, that his public-policy claim was duplicative of his WPA claim, and that his ELCRA claim was meritless because plaintiff had demonstrated neither membership in a protected class nor engagement in a protected activity. Defendants also argued that the public-policy claim was barred by governmental immunity.

Plaintiff responded to defendants' motion and voluntarily dismissed his WPA claim. However, he argued that his public-policy claim was not duplicative of his WPA claim, that it also was not barred by governmental immunity, and that he had pleaded a prima facie ELCRA claim. Plaintiff also argued that, if the trial court found that any of his claims were legally deficient, he should be permitted to amend his complaint.

The trial court held a hearing on defendants' motion. Defendants argued that plaintiff's claim was, in essence, a "whistleblower claim," that plaintiff's claims were therefore governed by the WPA, and that because plaintiff had admitted that he had no viable claim under the WPA, the remaining claims should be dismissed. Defendants also argued that, in any event, the public-policy claim was barred by governmental immunity, the township being entitled to immunity as a governmental agency and Chief Green being entitled to absolute immunity by virtue of his high-level position. Defendant reiterated that plaintiff's ELCRA claim was not viable because plaintiff had failed to allege either membership in a protected class or participation in protected activity. Plaintiff responded that defendants' motion was premature, because he had clearly pleaded the elements of viable public-policy and ELCRA claims. Plaintiff also argued that his public-policy claim was distinct from a claim under the WPA, because he had been asked by his employer to violate the law governing police officers' investigation of crimes. Plaintiff also asserted that he had pleaded in avoidance of governmental immunity. Finally, plaintiff argued that his claim for retaliation under the ELCRA did not require a showing that plaintiff was a member of a protected class, and that plaintiff had adequately pleaded that he had engaged in protected activity by participating in a sexual abuse investigation.

Following the motion hearing, the trial court issued a written opinion and order granting defendants' motion and dismissing plaintiff's case. Regarding the public-policy claim, the trial court held that it arose of out of circumstances that gave rise to a claim for relief under the WPA, and that the WPA therefore provided the exclusive remedy for plaintiff's claim. Moreover, the trial court held, the township was entitled to governmental immunity on that claim. Regarding Chief Green, the trial court stated that it "lacks sufficient factual information at the pleading stage to determine whether he should be considered an official, subject to absolute immunity under MCL 691.1407(5), or an employee, subject to qualified immunity under MCL 691.1407(2), (3)."

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It therefore held that a "finding of government[al] immunity as it applies to Chief Green would be premature."

Regarding plaintiff's ELCRA claim, the trial court held that plaintiff's allegations that he had participated in a criminal investigation into sexual abuse did not constitute participation in a protected activity, noting that "the complaint fails to contain any factual allegations to show that the alleged sexual misconduct Plaintiff was investigating violated a civil right protected by the [EL]CRA." The trial court also concluded that granting plaintiff leave to amend his complaint would be futile.

This appeal followed.

II. PUBLIC-POLICY WRONGFUL TERMINATION CLAIM

Plaintiff argues that the trial court erred by holding that his public-policy wrongful termination claim was preempted by the WPA, and by holding that the township was entitled to governmental immunity with respect to that claim. We disagree.

We review de novo a trial court's decision to grant or deny summary disposition under MCR 2.116(C)(8). See Beaudrie v Henderson, 465 Mich. 124, 129; 631 N.W.2d 308 (2001). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint.^[2] Id. Summary disposition is appropriate if the plaintiff has failed to state a claim on which relief can be granted, such that no factual development could possibly justify recovery. Id. at 129-130. In reviewing a trial court's grant of summary disposition to a defendant under this standard, we "accept as true all well-pleaded facts" in the plaintiff's complaint. Radtke v Everett, 442 Mich. 368, 373; 501 N.W.2d 155 (1993) (citation omitted). We review de novo as a question of law the applicability of governmental immunity. Wood v Detroit, 323 Mich.App. 416, 419; 917 N.W.2d 709 (2018). We also review de novo the application and interpretation of statutes. Id.

A. PREEMPTION BY THE WPA

The WPA generally protects plaintiffs who report or are about to report violations or suspected violations of law by employers and coworkers, or those that participate in investigations held by public bodies. Chandler v Dowell Schlumberger Inc, 456 Mich. 395, 403; 572 N.W.2d 210 (1998). Under MCL 15.362:

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 . . . reports or is about to report

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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.

The WPA thus "provides protection for two types of 'whistleblowers': (1) those who report, or about to report, violations of law, regulation, or rule to a public body, and (2) those who are requested by a public body to participate in an investigation held by that public body or in a court action." Henry v Detroit, 234 Mich.App. 405, 409; 594 N.W.2d 107 (1999). A "type 1 whistleblower" is someone "who, on his own initiative, takes it upon himself to communicate the employer's wrongful conduct to a public body in an attempt to bring the, as yet hidden, violation to light to remedy the situation or harm done by the public body." Id. at 410. "Type 2 whistleblowers" are those who "participate in a previously initiated investigation or hearing at the behest of a public body." Id. "If a plaintiff falls under either category, then that plaintiff is engaged in a 'protected activity' for purposes of presenting a prima facie [WPA] case." Id.

In addition to the WPA, there exists in Michigan a common-law claim for wrongful termination against public policy. Termination of at-will employment is typically proscribed by public policy in Michigan in three situations: "(1) 'adverse treatment of employees who act in accordance with a statutory right or duty,' (2) an employee's 'failure or refusal to violate a law in the course of employment,' or (3) an 'employee's exercise of a right conferred by a well-established legislative enactment.'" Kimmelman v Heather Downs Mgt Ltd, 278 Mich.App. 569, 573; 753 N.W.2d 265 (2008), quoting Suchodolski v Mich. Consol Gas Co, 412 Mich. 692, 695-696; 316 N.W.2d 710 (1982). However, where a statute already exists that prohibits a particular adverse employment action, the statute provides the exclusive remedy, and claims under Michigan public policy cannot be maintained. Kimmelman, 278 Mich.App. at 573.

"The remedies provided by the WPA are exclusive and not cumulative. Thus, when a plaintiff alleges discharge in retaliation for engaging in activity protected by the WPA, [t]he WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity." McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316...