Rivera v. SVRC Indus., Inc.

• Court: Michigan Supreme Court
• Citation: Rivera v. SVRC Indus., Inc., 959 N.W.2d 704(Mem) (Mich. 2021)
• Decision Date: 11 June 2021
• Docket Number: SC: 159857,COA: 341516
• Parties: Linda RIVERA, Plaintiff-Appellant, v. SVRC INDUSTRIES, INC., Defendant-Appellee.

959 N.W.2d 704 (Mem)

Linda RIVERA, Plaintiff-Appellant,

v.SVRC INDUSTRIES, INC., Defendant-Appellee.

SC: 159857

COA: 341516

Supreme Court of Michigan.

June 11, 2021

Order

On January 7, 2021, the Court heard oral argument on the application for leave to appeal the April 4, 2019 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we AFFIRM in part, VACATE in part, and REVERSE in part the judgment of the Court of Appeals and REMAND this case to that court for further consideration of plaintiff's public-policy claim.

We AFFIRM the Court of Appeals’ holding that "plaintiff has failed to prove that a genuine issue of material fact existed regarding whether she had engaged in a protected activity by being about to report a violation or suspected violation of law" to the police. Rivera v. SVRC Indus., Inc. , 327 Mich. App. 446, 461-462, 934 N.W.2d 286 (2019). Viewing the evidence in the light most favorable to plaintiff, the evidence does not demonstrate that plaintiff herself was "about to report ... a suspected violation of a law," MCL 15.362, but rather that she wanted defendant to so report and was upset that it would not. There is a legally significant distinction between being "about to report ... a suspected violation of a law" and merely wanting someone else to so report; the former constitutes protected activity under the Whistleblowers’ Protection Act (the WPA), MCL 15.361 et seq. , while the latter does not. Accordingly, plaintiff has failed to establish a genuine issue of material fact that she was "about to report ... a suspected violation of a law" to the police. MCL 15.362.¹

Next, we AFFIRM the Court of Appeals’ holding that plaintiff did not establish a genuine issue of material fact that there was a causal connection between plaintiff's communication with defendant's attorney and her termination. However, we VACATE the Court of Appeals’ holding that plaintiff's communication with defendant's attorney was not a "report" under the WPA, as this holding was unnecessary in light of our agreement with its conclusion that summary disposition was warranted based on plaintiff's failure to establish a causal connection between plaintiff's communication with defendant's attorney and her termination. See Shallal v. Catholic Social Servs. of Wayne Co. , 455 Mich. 604, 621, 566 N.W.2d 571 (1997) (holding that the plaintiff could not recover under the WPA because she "failed to establish a causal connection between her actions and her firing").

Finally, we REVERSE the Court of Appeals’ holding in Part III(D) of its opinion that plaintiff's public-policy claim is preempted by the WPA. Plaintiff's complaint alleges two factual bases for her public-policy claim: (1) her attempt to report LS's actions to the police, and (2) her refusal to conceal and/or compound LS's violations of the law. Because plaintiff has not demonstrated a question of fact that this conduct entitles her to recover under the WPA, her public-policy claim based on this conduct is not preempted by the WPA. See Pace v. Edel-Harrelson , 499 Mich. 1, 10 & n. 19, 878 N.W.2d 784 (2016), quoting Anzaldua v. Neogen Corp. , 292 Mich. App. 626, 631, 808 N.W.2d 804 (2011) (" ‘[I]f the WPA does not apply, it provides no remedy and there is no preemption.’ "). The Court of Appeals did not address whether these allegations stated an actionable claim for unlawful termination in violation of public policy. See McNeil v. Charlevoix Co. , 484 Mich. 69, 79, 772 N.W.2d 18 (2009) ; Pratt v. Brown Machine Co. , 855 F.2d 1225, 1236-1238 (C.A. 6, 1988). Moreover, while the Court of Appeals determined that some of plaintiff's allegations were not factually supported, it did not determine whether the allegations that were factually supported established a claim for unlawful termination in violation of public policy. We REMAND this case to the Court of Appeals to address whether, viewing the evidence in the light most favorable to plaintiff, there is a genuine issue of material fact that her termination was unlawful in violation of public policy, including, if necessary, whether she can establish a causal connection between her conduct and her termination.

Zahra, J. (concurring).

I concur with this Court's order in full. I write separately because, for the reasons stated in McNeill-Marks v. MidMichigan Med. Ctr.-Gratiot , 502 Mich. 851, 856-857 n. 13, 912 N.W.2d 181 (2018) ( ZAHRA , J., dissenting), I continue to believe "a persuasive argument can be made that the [State Bar of Michigan (SBM)] is not a ‘public body’ under the [Whistleblowers’ Protection Act (the WPA), MCL 15.361 et seq. ]," in which case an attorney, as a member of the SBM, would not constitute a member of a public body for purposes of the WPA. See also id. at 867, 912 N.W.2d 181 ("The statutory definition of ‘public body’ is extremely expansive and may well exceed the scope of entities the Legislature intended to include as an entity or organization suitable to field a report of suspected illegal activity."). However, because it is unnecessary to reach that issue to resolve this case, I concur.

Viviano, J. (concurring).

I fully concur in the Court's order and write only to highlight a curious interpretation that has been given to the Michigan Whistleblowers’ Protection Act (the WPA), MCL 15.361 et seq. , that was incidentally involved in the present case. That statute protects employees from retaliation when they "report[ ]" or are "about to report" a violation of the law "to a public body." MCL 15.362. "Public body," in turn, is defined expansively to include bodies "created" or "primarily funded" by state or local authority and "any member or employee of that body." MCL 15.361(d)(iv) (emphasis added). The WPA leaves the term "member" undefined.

The Court of Appeals has held that the State Bar of Michigan (the SBM) qualifies as a "public body" under the WPA. McNeill-Marks v. MidMichigan Med. Ctr.-Gratiot , 316 Mich. App. 1, 23, 891 N.W.2d 528 (2016). Because of the statutory definition of "public body," every "member" of the SBM is likewise a "public body" for purposes of the WPA. Id. Because one cannot be licensed to practice law in this state without being a "member" of the SBM, MCL 600.901 ; SBR 2, the result of the Court's holding is that every licensed lawyer in the state is a "public body" to whom employees can make protected reports. In other words, an employee would gain the protections of the WPA by reporting or being about to report a suspected violation of law to any licensed attorney in the state—even if that employee had no prior relationship with that attorney.

Perhaps this result is compelled by a proper reading of the WPA's language, but I question whether the Legislature intended this result. This Court heard arguments in McNeill-Marks and ultimately denied leave to appeal. McNeill-Marks v. MidMichigan Med. Ctr.-Gratiot , 502 Mich. 851, 912 N.W.2d 181 (2018). At that time, however, only five justices were participating in the case. And none of the parties in that case had addressed the question that I believe the Court should closely consider in a future case: whether the relevant meaning of "member" as used in the WPA is narrower than that suggested by the Court of Appeals such that it only includes members of the SBM with some decision-making authority regarding that body but excludes the licensed lawyer who has no role in the SBM other than simply paying his or her dues to be a nominal member. The Court of Appeals in McNeill-Marks relied on the fact that the attorney at issue was a member of the SBM without first defining the word "member." One definition of "member," which aligns with how the Court of Appeals appears to have interpreted the word, is "one of the individuals composing a group." Webster's New Collegiate Dictionary (1981).² But narrower and more specialized definitions also exist, such as "[o]ne who has been formally elected to take part in the proceedings of a parliament" and "[a] component part, branch, of a political body." The Oxford English Dictionary (2d ed.). Similarly, Black's Law Dictionary (10th ed.) provides the following definition: "One of the individuals of whom an organization or a deliberative assembly consists, and who enjoys the full rights of participating in the organization—including the rights of making, debating, and voting on motions—except to the extent that the organization reserves those rights to certain classes of membership."³ These narrower definitions indicate a stronger, constitutive sense of membership in which a person must have some authority or deliberative power with regard to the body.⁴

If this is the proper interpretation of "member," the issue then becomes whether a simple dues-paying membership in the SBM meets...