Shuttleworth v. Riverside Osteopathic Hosp.

• Decision Date: 20 August 1991
• Docket Number: Docket No. 121019
• Citation: 477 N.W.2d 453,191 Mich.App. 25
• Parties: Arlene SHUTTLEWORTH and Kim Shuttleworth, Plaintiffs-Appellants, v. RIVERSIDE OSTEOPATHIC HOSPITAL, a Michigan nonprofit corporation, Defendant-Appellee. 191 Mich.App. 25, 477 N.W.2d 453, 121 Lab.Cas. P 56,797, 7 Indiv.Empl.Rts.Cas. (BNA) 798
• Court: Court of Appeal of Michigan — District of US

Page 453

477 N.W.2d 453

Arlene SHUTTLEWORTH and Kim Shuttleworth Plaintiffs-Appellants, v. RIVERSIDE OSTEOPATHIC HOSPITAL, a Michigan nonprofit corporation, Defendant-Appellee.

Docket No. 121019.

191 Mich.App. 25, 477 N.W.2d 453, 121 Lab.Cas. P 56,797,

7 Indiv.Empl.Rts.Cas. (BNA) 798

Court of Appeals of Michigan.

Submitted March 11, 1991, at Detroit.

Decided Aug. 20, 1991, at 9:40 a.m.

Released for Publication Dec. 16, 1991.

[191 MICHAPP 26] Roy, Shecter & Vocht, P.C. by Lynn H. Shecter, Birmingham, for plaintiffs-appellants.

Dickinson, Wright, Moon, Van Dusen & Freeman by Henry W. Saad and Gary S. Casey, Bloomfield Hills, and H. Elliot Parnes, Southfield, for defendant-appellee.

Before BRENNAN, P.J., and MICHAEL J. KELLY and WALSH, ^* JJ.

MICHAEL J. KELLY, Judge.

Plaintiffs filed the instant lawsuit after plaintiff Arlene Shuttleworth was terminated from her employment by defendant in alleged retaliation for filing a complaint under the Michigan Occupational Safety and Health Act, M.C.L. Sec. 408.1001 et seq.; M.S.A. Sec. 17.50(1) et seq. The circuit court granted summary disposition pursuant to MCR 2.116(C)(8) in favor of defendant after finding that plaintiff Arlene Shuttleworth had failed to exhaust her administrative remedies under the MIOSHA and had failed to file a timely claim under Sec. 2 of the Whistleblowers' Protection Act (WPA), M.C.L. Sec. 15.362; M.S.A. Sec. 17.428(2). Plaintiffs appeal as of right, and we affirm.

A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim solely on the basis of the pleadings. All factual allegations made in support of the claim [191 MICHAPP 27] are accepted as true, as well as any reasonable inferences that can be drawn therefrom. The motion is properly granted when the claim is so clearly unenforceable as a matter of law that no factual development could justify a right of recovery. Parkhurst Homes, Inc. v. McLaughlin, 187 Mich.App. 357, 360, 466 N.W.2d 404 (1991).

Plaintiffs contend that the trial court erred in finding that the WPA is the exclusive remedy for an employee who has been wrongfully discharged from employment for reporting an employer's violation of the law. Plaintiffs assert that a common-law cause of action for retaliatory discharge predated the WPA and that, therefore, the remedies are cumulative. We disagree.

The WPA provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision or the United States. M.C.L. Sec. 15.362; M.S.A. Sec. 17.428(2). It is the general rule in this state that when a statute creates a new right or imposes a new duty having no counterpart in the common law, the remedies provided in the statute for its violation are exclusive and not cumulative. Pompey v. General Motors Corp., 385 Mich. 537, 552, 189 N.W.2d 243 (1971). This Court in Covell v. Spengler, 141 Mich.App. 76, 366 N.W.2d 76 (1985), held that no common-law counterpart existed before passage of the WPA and that, therefore, the act is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer's violation of the law. Plaintiffs have not cited, nor do we find, any common-law counterpart to the WPA.

Although plaintiffs maintain that retaliatory discharge actions predated passage of the WPA, they failed to direct this Court to any decision recognizing a common-law right for the type of [191 MICHAPP 28] retaliatory discharge that is now protected by the WPA. The only...