Kimmelman v. Heather Downs

• Decision Date: 15 April 2008
• Docket Number: Docket No. 277201.
• Citation: 753 N.W.2d 265,278 Mich. App. 569
• Parties: David KIMMELMAN, Plaintiff-Appellant, v. HEATHER DOWNS MANAGEMENT LIMITED and Legacy Golf Course LLC, Defendant-Appellees.<SMALL><SUP>1</SUP></SMALL>
• Court: Court of Appeal of Michigan — District of US

753 N.W.2d 265

278 Mich. App. 569

David KIMMELMAN, Plaintiff-Appellant, v. HEATHER DOWNS MANAGEMENT LIMITED and Legacy Golf Course LLC, Defendant-Appellees.¹

Docket No. 277201.

Court of Appeals of Michigan.

Submitted April 9, 2008, at Detroit.

Decided April 15, 2008, 2008, at 9:00 a.m.

Charles W. Palmer, Taylor, for the plaintiff.

Lyden, Liebenthal & Chappell, Ltd. (by Erik Chappell), Toledo, OH, for the defendants.

Before: JANSEN, P.J., and DONOFRIO and DAVIS, JJ.

DAVIS, J.

Plaintiff appeals as of right an order granting summary disposition pursuant to MCR 2.116(C)(8), failure to state a claim on which relief can be granted, and denying his motion to amend the complaint. We affirm.

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the nonmoving party. Id., at 119, 597 N.W.2d 817. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Rozwood, supra at 119-120, 597 N.W.2d 817. Because defendants moved for summary disposition in lieu of filing an answer, the only pleading in this case is the complaint. See MCR 2.110(A).

We likewise review de novo questions of statutory construction, with the fundamental goal of giving effect to the intent of the Legislature. Weakland v. Toledo Engineering Co., Inc., 467 Mich. 344, 347, 656 N.W.2d 175 (2003), amended on other grounds 468 Mich. 1216, 656 N.W.2d 175 (2003). The goal of statutory interpretation is to determine and give effect to the intent of the Legislature, with the presumption that unambiguous language should be enforced as written. Gladych v. New Family Homes, Inc., 468 Mich. 594, 597, 664 N.W.2d 705 (2003). If the language is unambiguous, "the proper role of a court is simply to apply the terms of the statute to the circumstances in a particular case." Veenstra v. Washtenaw Country Club, 466 Mich. 155, 160, 645 N.W.2d 643 (2002), citing Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 528 N.W.2d 681 (1995).

Leave to amend a pleading "shall be freely given when justice so requires." MCR 2.118(A)(2). "Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified." Lewandowski v. Nuclear Mgt. Co., LLC, 272 Mich.App. 120, 126-127, 724 N.W.2d 718 (2006). The trial court's decision whether to grant leave to amend a pleading is reviewed for an abuse of discretion. Id.

Taking plaintiff's complaint as true, plaintiff was employed by defendants as a mechanic. One of defendants' co-owners, Joseph Garverick, sexually assaulted one of plaintiff's coworkers; plaintiff's proposed amended complaint emphasizes that this assault took place away from work and after working hours. The co-worker told plaintiff about the assault. Plaintiff agreed to give a statement to the Michigan State Police in their ensuing criminal investigation of Garverick, and plaintiff was subpoenaed as a witness at Garverick's trial. Plaintiff was not required to testify because that case was resolved by entry of a plea. On September 21, 2006, plaintiff accompanied the coworker to Garverick's sentencing. The next day, when plaintiff reported to work, his employment was terminated. Plaintiff filed the instant suit on January 10, 2007, alleging common-law wrongful discharge. Specifically, he alleged that he was terminated as retaliation for his cooperation with the criminal investigation and prosecution and his presence at the sentencing.

Defendants argued all of the alleged bases for plaintiff's termination constitute protected activities under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. "The existence of the specific prohibition against retaliatory discharge in the WPA is determinative of the viability of a public policy claim." Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 79, 503 N.W.2d 645 (1993). Therefore, plaintiff's exclusive remedy would be under the WPA, and he would have no other "public policy" claim. Critically, the WPA provides 90 days in which to file suit, MCL 15.363(1), and plaintiff exceeded this window. The trial court granted summary disposition on that basis.

Whether any of plaintiff's alleged bases for his termination fall outside the scope of the WPA is therefore the issue before us in this appeal.

Plaintiff has not alleged in his complaint, nor has he alleged in his proposed amended complaint, that his employment was anything other than at-will. In the absence of any indications to the contrary, employment is rebuttably presumed to be at-will. Lytle v. Malady (On Rehearing), 458 Mich. 153, 163-164, 579 N.W.2d 906 (1998). Because plaintiff has not alleged anything that would tend to rebut this presumption, plaintiff must be considered an at-will employee on the basis of the pleadings. Consequently, his employment was terminable at any time and for any — or no — reason, unless that termination was contrary to public policy. Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 695, 316 N.W.2d 710 (1982). "Public policy" proscribing termination of at-will employment is "most often" used 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." Suchodolski, supra at 695-696, 316 N.W.2d 710.

Our Supreme Court's enumeration of "public policies" that might forbid termination of at-will employees was not phrased as if it was an exhaustive list. However, as a general matter, "the proper exercise of the judicial power is to determine from objective legal sources what public policy is, and not to simply assert what such policy ought to be on the basis of the subjective views of individual judges." Terrien v. Zwit, 467 Mich. 56, 66, 648 N.W.2d 602 (2002) (emphasis in original), citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803). Consistently with this principle that the courts may only derive public policy from objective sources, our Supreme Court's enumerated "public policies" in the context of wrongful termination all entail an employee exercising a right guaranteed by law, executing a duty required by law, or refraining from violating the law. Furthermore, where there exists a statute explicitly proscribing a particular adverse employment action, that statute is the exclusive remedy, and no other "public policy" claim for wrongful discharge can be maintained. Dudewicz, supra at 78-80, 503 N.W.2d 645.

The Whistleblowers' Protection Act provides as follows:

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. [MCL 15.362.]

It is not disputed that plaintiff did not report, nor was he about to report, any violation of law. It is also not disputed that the criminal investigation and court action did not technically involve plaintiff's employer, but rather the individual coowner, in that person's individual capacity, of the business entities that employed plaintiff. Plaintiff's proposed amended complaint states — and the parties have treated as presumed — that the subject of the investigation was not related to plaintiff's employer or employment.

Nevertheless, the plain language of the statute is not limited to violations by employers. Dudewicz, supra at 77, 503 N.W.2d 645. In Dudewicz, our Supreme Court determined that the facts before it did not warrant "test[ing] the outer limits of this rather broad statute." Id. The facts here do. Moreover, this Court must follow the unambiguous language of a statute, even if doing so would produce an absurd or irrational result.² Our Supreme Court has explained that the courts must follow the plain and unambiguous language of a statute, even if doing so would produce an absurd or irrational result. People v. McIntire, 461 Mich. 147, 155-158 & n. 2, 599 N.W.2d 102 (1999). The language in the WPA is unambiguous: an employee need only be requested by a...