Ernsting v. Ave Maria College

• Citation: 736 N.W.2d 574,274 Mich. App. 506
• Decision Date: 06 March 2007
• Docket Number: Docket No. 265187.
• Parties: Katherine M. ERNSTING, Plaintiff-Appellant, v. AVE MARIA COLLEGE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

736 N.W.2d 574

274 Mich. App. 506

Katherine M. ERNSTING, Plaintiff-Appellant, v. AVE MARIA COLLEGE, Defendant-Appellee.

Docket No. 265187.

Court of Appeals of Michigan.

Submitted February 8, 2006, at Lansing.

Decided March 6, 2007, at 9:00 a.m.

Released for Publication June 21, 2007.

Sommers Schwartz, P.C. (by Joseph A. Golden), Southfield, for the plaintiff.

Pear Sperling Eggan & Daniels, P.C. (by Karl V. Fink, Francyne Stacey, and Claudia Rast), Ann Arbor, for the defendant.

Before: WILDER, P.J., and ZAHRA and DAVIS, JJ.

WILDER, P.J.

In this action brought under the Michigan Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., plaintiff appeals as of right the order granting defendant's motion for summary disposition under MCR 2.116(C)(8) and (10). We reverse.

I

From September 10, 2001, to September 2003, plaintiff was employed by defendant as its director of public relations until her placement as special assistant to the president of Ave Maria College. She served in this position until her employment was terminated in July 2004. In a single-count complaint alleging wrongful termination, plaintiff alleged that defendant violated the WPA by terminating her employment in response to her reports and participation in a United States Department of Education (DOE) investigation regarding defendant's administration of title IV student financial assistance programs during the 2000 to 2001, 2001 to 2002, and 2002 to 2003 award years.

Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Following a hearing, the trial court granted defendant's motion. Rejecting plaintiff's reliance on Jacobson v. Parda Fed. Credit Union, 457 Mich. 318, 577 N.W.2d 881 (1998), and Dolan v. Continental Airlines/Continental Express, 454 Mich. 373, 563 N.W.2d 23 (1997), the trial court determined that plaintiff's claim did not involve a report to a public body, as required by the WPA, concluding instead that the DOE is not a "law enforcement agency," and therefore not a "public body" under the terms of the act:

This Court is not persuaded that the Department of Education and its Office of Inspector General is [a] "law enforcement agency." [Jacobson and Dolan] involve the Federal Bureau of Investigation and the Drug Enforcement Agency, respectively. These two federal agencies possess not only the authority to investigate claims, but also the authority to make arrests. Plaintiff does not provide, and this Court has found, no authority given to the Department of Education to arrest. While it may . . . have the authority to investigate criminal action, it does not possess the authority to effectuate enforcement of the laws and therefore it is not a "law enforcement agency." This conclusion is supported by the common meaning of the word "enforce": 1. to give force to; urge 2. to bring about or impose by force 3. to compel observance of.¹ [Emphasis in original.]

Accordingly, the trial court granted defendant's motion for summary disposition.² Plaintiff's motion for reconsideration was denied. Plaintiff now appeals.

II

This Court reviews de novo questions of law involving statutory interpretation and statutory construction. Michigan Muni. Liability & Property Pool v. Muskegon Co. Bd. of Co. Rd. Comm'rs, 235 Mich.App. 183, 189, 597 N.W.2d 187 (1999); Haworth, Inc. v. Wickes Mfg. Co., 210 Mich.App. 222, 227, 532 N.W.2d 903 (1995). This Court also reviews de novo the trial court's grant of summary disposition pursuant to MCR 2.116(C)(8) and (10). Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003); Maiden v. Rozwood, 461 Mich. 109, 118 597 N.W.2d 817 (1999).

A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint; a court considers only the pleadings when deciding a motion brought under this section. Maiden, supra at 119, 597 N.W.2d 817. For purposes of reviewing a motion for summary disposition under MCR 2.116(C)(8), all well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Id. "A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are `so clearly unenforceable as a matter of law that no factual development could possible justify recovery.'" Id., quoting Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992).

When deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Corley v. Detroit Bd. of Ed., 470 Mich. 274, 278, 681 N.W.2d 342 (2004). Summary disposition is proper under MCR 2.116(C)(10) if the documentary evidence shows that there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). A genuine issue of material fact exists when the record, giving the benefit of any reasonable doubt to the opposing party, leaves open an issue on which reasonable minds could differ. Id.

III

Plaintiff argues that the trial court erred in finding that plaintiff was not engaged in an activity protected under the WPA because the DOE is not a "public body" pursuant to MCL 15.361(d)(v). We agree.

A

We first consider whether a federal agency, as opposed to a state or local agency, may be considered a public body under the WPA. 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. [Emphasis added.]

Activity protected under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation. Roulston v. Tendercare (Michigan), Inc., 239 Mich.App. 270, 279, 608 N.W.2d 525 (2000), citing MCL 15.362. To establish a prima facie case under the WPA, plaintiff must show that (1) she was engaged in a protected activity as set forth in the act, (2) defendant discharged her, and (3) a causal connection existed between the protected activity and the discharge. Roulston, supra at 279, 608 N.W.2d 525.

MCL 15.361(d) defines a "public body" under the WPA as follows:

"Public body" means all of the following:

(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.

(ii) An agency, board, commission, council, member, or employee of the legislative branch of state government.

(iii) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof.

(iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body.

(v) A law enforcement agency or any member or employee of a law enforcement agency.

(vi) The judiciary and any member or employee of the judiciary. [Emphasis added.]

When construing the provisions of a statute, the primary task of this Court is to discern and give effect to the intent of the Legislature:

This task begins by examining the language of the statute itself. The words of a statute provide "the most reliable evidence of its intent . . . ." If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. [Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999) (citations omitted).]

The WPA does not define "law enforcement agency." In reliance on the rule of noscitur a sociis, which stands for the principle that a word or phrase is given meaning by its context or setting, Herald Co. v. Bay City, 463 Mich. 111, 130 n. 10, 614 N.W.2d 873 (2000), defendant argues that the Legislature implicitly intended to exclude federal law enforcement agencies from the definition of "public body" because subsections d(i) through (iv) expressly limit the definition of "public body" to include only state and local governmental entities. We cannot agree. "Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, and a dictionary may be consulted for this purpose." Polkton Charter Twp. v. Pellegrom, 265 Mich.App. 88, 102, 693 N.W.2d 170 (2005). Black's Law Dictionary (8th ed.) defines "law enforcement" as "[t]he detection and punishment of violations of the law. This term is not limited to the enforcement of criminal laws." Clearly, the function of detecting and punishing violations of the law is not performed solely by state and local agencies, which is reflected in the express language of MCL 15.361(d)(v). Nothing in MCL 15.361(d)(v) demonstrates the Legislature's intent that the term "law enforcement agency" is limited to state or local enforcement agencies. "[A] court may read...