Shallal v. Catholic Social Services of Wayne County, Docket No. 103125

Citation455 Mich. 604,566 N.W.2d 571
Decision Date30 July 1997
Docket NumberNo. 15,Docket No. 103125,15
Parties, 134 Lab.Cas. P 58,304, 13 IER Cases 218 Janette SHALLAL, Plaintiff-Appellant, v. CATHOLIC SOCIAL SERVICES OF WAYNE COUNTY and Thomas D. Quinn, Defendants-Appellees. Calendar
CourtSupreme Court of Michigan

Chambers, Steiner by Michelle J. Harrison and Courtney E. Morgan, Jr., and Angela Nicita, Detroit, for plaintiff-appellant.

Bodman, Longley & Dahling, L.L.P. by Karen L. Piper and Stephen K. Postema, Detroit, for defendants-appellees.

Opinion

MICHAEL F. CAVANAGH, Justice.

We granted leave to appeal in this case to determine whether the trial court abused its discretion in dismissing Janette Shallal's retaliatory discharge claim under the Whistleblowers' Protection Act. M.C.L. § 15.361 et seq.; M.S.A. § 17.428 et seq. We find no abuse of discretion and affirm the dismissal.

I

Defendant Catholic Social Services of Wayne County (CSS) is a nonprofit social service agency that provides a wide range of services. 1 Plaintiff Shallal worked for CSS as an adoption department supervisor under a termination "for cause" employment contract. This suit arises out of her claim against CSS for retaliatory discharge.

In late 1986, the CSS Board of Directors appointed defendant Thomas D. Quinn to the position of CSS president. Quinn's alleged lack of expertise prompted some members of the staff to write a letter to the board opposing the appointment. Despite the opposition, Quinn began his presidency in January 1987. 2

Approximately one year into Quinn's tenure, allegations arose that Quinn was drinking on the job and misusing agency funds in violation of agency rules. 3 Shallal discussed the need to report to her supervisor and other staff members. She also discussed her concerns about Quinn's violations with an honorary CSS Board Member, Mr. Ryan. Ryan suggested that Shallal report Quinn's violations to the board and to accrediting bodies, presumably in the DSS. Shallal never took action, however, because she feared that her job would be jeopardized.

Before her employment with CSS was terminated, Shallal supervised the adoption of a baby, Ray Glover. Soon after the placement, Shallal learned that Ray's former foster mother had visited Ray and reported seeing bruises on his face, neck, and hands. In retrospect, it appears that Shallal should have reported the allegation to the DSS. A case worker did check on Ray within thirty days of the allegation; however, no official action was taken, there being only minor scratches visible on Ray. Several weeks later, however, Ray was rushed to the hospital, nearly dead from "shaken baby syndrome." Today, he remains in a chronic vegetative state with severe, permanent brain damage.

When Shallal notified the DSS about Ray's injuries, it investigated and cited CSS with violations of several agency rules and regulations. It criticized Shallal for her inadequate response to the first report of abuse, her approval of an inadequate adoption home evaluation, and her failure to coordinate house visits. The DSS faulted Shallal for placing improper emphasis on race in the placement process. The report was equally critical of CSS, listing several institutional failures.

As is their practice, DSS officials met with defendant Quinn before issuing a formal written report on April 19, 1991. They did not specifically recommend Shallal's dismissal. Shallal alleges that, in the past, comparable employee errors did not result in discharge.

After the meeting with DSS officials, Quinn called Shallal into his office. The ensuing discussion became heated. Shallal stated her intention to report Quinn's abuses of alcohol and agency funds if he failed to, in her words, "straighten up." 4

Quinn decided to discharge Shallal, citing the DSS report as support. He ordered Timothy Kluka, plaintiff's direct supervisor, to fire her. Kluka refused, feeling he had insufficient information to give as a reason to dismiss. He also believed Shallal's termination would have negative implications for the staff and the agency. Instead, Kluka resigned from his position that day.

On April 24, 1991, Patrick Heron dismissed plaintiff for gross misconduct and negligence in supervising the adoption of Baby Ray. Quinn has since resigned from his position as president.

Plaintiff filed this suit on July 22, 1991, alleging a breach of her employment contract and violation of the Whistleblowers' Protection Act. With respect to the latter claim, the trial court found that any threats plaintiff made to report Quinn were contingent on his continued violation. It also found no evidence plaintiff was "about to" report a violation. It then granted summary disposition for defendants under MCR 2.116(C)(10).

The Court of Appeals affirmed in a two-to-one decision. 5 It reasoned that the Whistleblowers' Protection Act requires a plaintiff to be "near to an action, near to the performance, or in readiness to report the alleged misconduct of defendant Quinn." Unpublished opinion per curiam, issued February 28, 1995 (Docket No. 155006), slip op at 1. The Court of Appeals found that plaintiff failed to satisfy the immediacy requirement, because her threat was contingent on the perpetuation of Quinn's alleged misconduct. The Court concluded as a matter of law that no reasonable person could have believed that plaintiff was about to report a violation for purposes of the act.

II

The party bringing a motion for summary disposition under MCR 2.116(C)(10) bears the initial burden of supporting its position with affidavits, depositions, admissions, or other documentary evidence. Quinto v. Cross & Peters, 451 Mich. 358, 362, 547 N.W.2d 314 (1996). The burden then shifts to the nonmoving party to go beyond the pleadings to show the existence of a genuine issue of material fact. Id.

The trial court views affidavits and other documentary evidence supporting a (C)(10) motion in a light most favorable to the nonmoving party. Quinto, at 362, 547 N.W.2d 314. A party is entitled to summary disposition if the evidence shows that there is no genuine issue of material fact to resolve at trial. Id.

To determine if a genuine issue of material fact exists, the test is "whether the kind of record which might be developed, giving the benefit of reasonable doubt to the opposing party, would leave open an issue upon which reasonable minds might differ." [Skinner v. Square D Co., 445 Mich. 153, 162, 516 N.W.2d 475 (1994), quoting Farm Bureau Mutual Ins. Co. v. Stark, 437 Mich. 175, 184-185, 468 N.W.2d 498 (1991).]

Defendants offered deposition testimony to support their motion for summary disposition. Consequently, in order to survive the motion, Shallal had to provide documentary evidence establishing the existence of a genuine issue of material fact.

III

Section 2 of the Whistleblowers' Protection Act provides in part:

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.... [M.C.L. § 15.362; M.S.A. § 17.428(2) (emphasis added).]

To establish a prima facie case, it must be shown that (1) the plaintiff was engaged in protected activity as defined by the Whistleblowers' Protection Act, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. Terzano v. Wayne Co., 216 Mich.App. 522, 526, 549 N.W.2d 606 (1996).

It is undisputed that Shallal was discharged on April 24, 1991. Therefore, to meet her prima facie burden at the hearing, she needed only to provide facts from which one could reasonably conclude that (1) she had been engaged in protected activity and (2) the activity was causally connected to her discharge.

An employee is engaged in protected activity under the Whistleblowers' Protection Act who has reported, or is about to report, a suspected violation of law to a public body. It is undisputed that Shallal did not report a suspected violation of law to a public body before her discharge. 6 Hence, Shallal had the burden of establishing that a question of fact existed regarding whether she was "about to" report Quinn's violations to a public body. Our task is to determine if plaintiff met her burden. To accomplish that, we examine the Whistleblowers' Protection Act.

The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. Turner v. Auto Club Ins. Ass'n, 448 Mich. 22, 27, 528 N.W.2d 681 (1995). The first step in discerning intent is to examine the language of the statute in question. Auto Club Ins. Ass'n v. Hill, 431 Mich. 449, 430 N.W.2d 636 (1988). We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. Frame v. Nehls, 452 Mich. 171, 550 N.W.2d 739 (1996). We also consider that remedial statutes, such as the Whistleblowers' Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 77, 503 N.W.2d 645 (1993).

A plain meaning reading of the act shows that an employee "about to" report receives the same level of protection as one who has reported to a public body. The plain language also restricts recovery under the act by requiring a nonreporting employee to establish being "about to" report by offering clear and convincing evidence. M.C.L. § 15.363(4); M.S.A. § 17.428(3)(4). The face of the statute, however, does not explain what constitutes "about to" report, thereby lending itself to more than one interpretation. Consequently, we examine the purpose of the act for guidance.

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