Rivera v. SVRC Indus.

• Court: Court of Appeal of Michigan
• Writing for the Court: BOONSTRA, J.
• Decision Date: 02 September 2021
• Docket Number: 341516
• Citation: Rivera v. SVRC Indus., 341516 (Mich. App. Sep 02, 2021)
• Parties: LINDA RIVERA, Plaintiff-Appellee, v. SVRC INDUSTRIES, INC., Defendant-Appellant.

LINDA RIVERA, Plaintiff-Appellee, v. SVRC INDUSTRIES, INC., Defendant-Appellant.

No. 341516

Court of Appeals of Michigan

September 2, 2021

Saginaw Circuit Court LC No. 16-031756-NZ

Before: M. J. Kelly, P.J., and Servitto and Boonstra, JJ.

ON REMAND

BOONSTRA, J.

Defendant appealed by leave granted the trial court's denial of its motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in this action alleging a violation of the Whistleblowers' Protection Act (WPA) MCL 15.361 et seq., and unlawful retaliation against plaintiff in violation of Michigan public policy. This Court reversed and remanded for entry of an order granting summary disposition in favor of defendant. Rivera v SVRC Indus Inc, 327 Mich.App. 446, 451; 934 N.W.2d 286 (2019). Plaintiff appealed this Court's decision to our Supreme Court. In lieu of granting leave to appeal, the Court affirmed our holding that plaintiff had failed to establish a genuine issue of material fact regarding her "about to report" claim under the WPA, and our holding that plaintiff had failed to establish a causal connection between plaintiffs communication with defendant's attorney and her termination. Rivera v SVRC Indus, Inc, ___ Mich ___ (2021) (Docket No. 159857). The Court vacated the portion of our opinion holding that plaintiffs communication with defendant's attorney was not a "report" under the WPA, stating that this Court's holding was "unnecessary in light of our agreement with [the Court of Appeals'] conclusion that summary disposition was warranted" on causation grounds. Id. Finally, the Court reversed our holding that plaintiffs public-policy claim was preempted by the WPA, and remanded the case to this Court to address whether, viewing the evidence in the light most favorable to plaintiff, there is a genuine issue of material fact that plaintiffs termination was unlawful in violation of public policy. Id. We hold that defendant is entitled to summary disposition on plaintiffs public-policy claim.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In our previous opinion, this Court summarized the pertinent facts and procedural history of this case:

Plaintiff, Linda Rivera, was employed as the director of industrial operations at defendant, SVRC Industries, Inc., from October 2015 to October 2016. On September 15, 2016, plaintiff conducted a disciplinary meeting with an employee, LS, to address insubordination issues. According to plaintiff, LS made several statements during the meeting that plaintiff perceived to be threatening; specifically, LS raised the possibility of a "revolution" in this country and alluded to the fact that he could operate a firearm, that he was not afraid to pull the trigger, and that he did not discriminate.

Plaintiff reported LS's statements to defendant's chief operating officer, Debra Snyder. Plaintiff asked Snyder whether she should report the incident to the police, and Snyder stated that she would apprise chief executive officer Dean Emerson of the situation before calling back with further instructions. After consulting with the company's attorney, Gregory Mair, Emerson instructed Snyder not to file a police report on defendant's behalf. Meanwhile, plaintiff sought advice from a friend at a different company, who told her to notify the police and to, in effect, "start a paper trail." Plaintiff then discussed the incident with Sylvester Payne, her "on and off significant other, who served as the chairman of defendant's board of directors.

Plaintiff also communicated with Snyder about the incident by text message. In the text messages, plaintiff reasserted her concern and inquired about whether she should contact the police. Snyder informed plaintiff that Mair had advised against filing a police report on defendant's behalf. Plaintiff told Snyder that she had contacted Payne to discuss the incident, and Snyder responded by text message:

Linda, Sylvester is not an employee of SVRC. He is a board member. Please be very careful with sharing confidential information about employees. If you want to file a personal protection order you can do so, which may mean filing a police report, but that is not what was advised by our attorney. Let's talk when you get to work in the morning.

Plaintiff acknowledged that she was never discouraged by Snyder or anyone else from reporting LS's conduct to the police. Regardless, plaintiff never gave any indication that she was going to report the incident to the police, and she apparently never took any action to do so.

Emerson instructed Mair to investigate the incident. Mair spoke with plaintiff, as well as other employees who were present at the meeting with LS, between September 22 and September 28, 2016. Defendant terminated LS's employment on October 3, 2016.

On October 4, 2016, plaintiff received notice that she was being permanently laid off from her position with defendant, effective October 6, 2016, for "budgetary and economic reasons." Plaintiff filed suit against defendant, claiming that defendant had violated MCL 15.362 of the WPA in two ways: (1) by retaliating against plaintiff when she was about to report LS's conduct to the police and (2) by retaliating against plaintiff when she reported LS's conduct to Mair. Plaintiff additionally claimed that defendant had unlawfully retaliated against her in violation of Michigan public policy. Defendant moved for summary disposition under MCR 2.116(C)(10), which the trial court denied. [Rivera, 327 Mich.App. at 451-453.]

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. Dextrom v Wexford Co, 287 Mich.App. 406, 416; 789 N.W.2d 211 (2010). Summary disposition is proper under MCR 2.116(C)(10) if, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." "When reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a court must examine the documentary evidence presented and, drawing all reasonable inferences in favor of the nonmoving party, determine whether a genuine issue of material fact exists." Dextrom, 287 Mich.App. at 415-416. This Court also reviews de novo questions of law. Fraser Twp v Linwood-Bay Sportsman's Club, 270 Mich.App. 289, 293; 715 N.W.2d 89 (2006).

III. ANALYSIS

Plaintiff failed to establish a genuine issue of material fact regarding whether defendant instructed her not to report LS's conduct, and the trial court therefore erred by denying defendant's motion for summary disposition regarding her public-policy unlawful termination claim.

In the absence of a contract providing to the contrary, employment is usually terminable by the employer or the employee at any time, for any or no reason whatsoever. McNeil v Charlevoix Co, 484 Mich. 69, 79; 772 N.W.2d 18 (2009); Smith v Town & Country Props II, Inc, ___ Mich App___, ___;____ N.W.2d ___ (2021), slip op at 4, 6. There is, however, a public-policy exception to this rule; an employer is not free to discharge an at-will employee when the reason for the discharge contravenes public policy. Id; see also Suchodolski, 412 Mich. at 695; Kimmelman, 278 Mich.App. at 572-573. 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); see also Smith, ___Mich App at ___, slip op at 6-7.

The "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." Kimmelman, 278 Mich.App. at 573. However, as this Court has recently reiterated, Michigan courts do not have

unfettered discretion or authority to determine what may constitute sound public policy exceptions to the at-will employment doctrine. As observed in Terrien v Zwit, 467 Mich. 56, 66-67; 648 N.W.2d 602 (2002):

In defining "public policy," it is clear to us that this term must be more than a different nomenclature for describing the personal preferences of individual judges, for 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 . . .

In identifying the boundaries of public policy, we believe that the focus of the judiciary must ultimately be upon the policies that, in fact, have been adopted by the public through our various legal processes, and are reflected in our state and federal constitutions, our statutes, and the common law. See Twin City Pipe Line Co v Harding Glass Co, 283 U.S. 353, 357; 51 S.Ct. 476; 75 L.Ed. 1112 (1931). The public policy of Michigan is not merely the equivalent of the personal preferences of a majority of this Court; rather, such a policy must ultimately be clearly rooted in the law. There is no other proper means of ascertaining what constitutes our public policy.

Consistent with this observation, the Terrien Court noted that as a general rule, making social policy is a job for the Legislature, not the courts, id. at 67, and found instructive the United States Supreme Court's mandate:" 'Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests. As the term

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