The circuit court granted defendant General Motors' motion for summary disposition and dismissed plaintiff's
Plaintiff Calvin West worked as a maintenance supervisor for defendant General Motors. He was a salaried employee and was responsible for completing his own time sheet. Plaintiff was warned several times in 1996 and in February 1997 about misrepresenting the time he actually worked. Nevertheless, plaintiff reported four extra hours of overtime on his time sheet for May 22, 1997. His supervisors learned of this overstatement and, after an investigation, plaintiff was disciplined on June 4, 1997. Plaintiff was prohibited from working any overtime, and he was required to use the salaried-employee entrance and to "swipe" his identification badge at the entrance each time he entered or left the plant. In addition, plaintiff was advised, orally and in writing, that reporting time that was not actually worked constituted fraudulent conduct and could result in termination of his employment.
Effective August 11, 1997, plaintiff was transferred from the morning shift to the afternoon shift.
While plaintiff was still working on the morning shift, an incident occurred on May 4, 1997, involving a union committee person named Jim Reeves. Plaintiff entered a room where Reeves and others were in conference. When plaintiff did not leave the room as Reeves ordered, there was physical contact between plaintiff and Reeves. Plaintiff claims that he was shoved by Reeves; Reeves claims that when he stood up from his desk his stomach brushed plaintiff.
Plaintiff reported to plant security that Reeves had assaulted him. In addition, plaintiff claims he telephoned the Romulus police and reported the assault.
In his complaint, plaintiff claimed that his rights under the Whistleblowers' Protection
The Court of Appeals found that a factual issue existed regarding whether there was a causal connection between plaintiff's telephone call to the Romulus police and the subsequent adverse employment actions. The Court accordingly reversed the summary-disposition order and remanded the case for further proceedings on plaintiff's whistleblower count. The Court of Appeals did not address the circuit court's finding that there were legitimate reasons for the employment actions.
Defendants' summary-disposition motion regarding the whistleblower claim was brought under MCR 2.116(C)(10) (no genuine issue of material fact). Appellate review of the grant or denial of a summary-disposition motion is de novo, and the court views the evidence in the light most favorable to the party opposing the motion. Maiden v. Rozwood, 461 Mich. 109, 118, 120, 597 N.W.2d 817 (1999). Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604, 609, 566 N.W.2d 571 (1997); Quinto v. Cross & Peters Co., 451 Mich. 358, 369, 547 N.W.2d 314 (1996).
Plaintiff's whistleblower claim is brought under M.C.L. § 15.362, which states:
To establish a prima facie case under this statute, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act,
Plaintiff claims that, because of his report to the police, he was disciplined when he was barred from overtime, required to swipe his identification badge, transferred to the afternoon shift, and discharged. However, our review of the record reveals no evidentiary support from which a reasonable jury could find a causal connection between plaintiff's report to the police and these employment actions.
Plaintiff's case rests on the factual point that he advised supervisors Koyal and Tate that he had reported the assault to the police. That assertion, by itself, is not enough to raise a reasonable inference that plaintiff was retaliated against or discriminated against on the basis of the report. It does nothing to establish a causal nexus between plaintiff's contacts with his supervisors and any subsequent employment action.
Summary disposition for the defendant is appropriate when a plaintiff cannot factually demonstrate a causal link between the protected activity and the adverse employment action. For example, in Shallal, the plaintiff failed to establish the necessary causal connection because she knew her discharge was imminent before the protected activity on which she based her whistleblower claim, and in Roberson v. Occupational Health Centers of America, Inc., 220 Mich.App. 322, 559 N.W.2d 86 (1996), the plaintiff failed to show a causal connection because the evidence did not show that the employer knew about the plaintiff's filing of a complaint with the Occupational Safety and Health Administration until after she was discharged.
The most that plaintiff demonstrates here is that he was disciplined, and eventually discharged, after he reported to the police that Reeves had assaulted him. To prevail, plaintiff had to show that his employer took adverse employment action because of plaintiff's protected activity, but plaintiff has merely shown that his employer disciplined him after the protected activity occurred. Plaintiff had to demonstrate that the adverse employment action was in some manner influenced by the protected activity, but has failed to make such a demonstration. The evidence does not show that either of the supervisors, whom plaintiff allegedly informed about the call to the police, viewed the call as a matter of any consequence. Nor was either supervisor involved in the decision to discharge plaintiff.
Although the employment actions about which plaintiff complains occurred after his report to the police, such a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment
A case in which a close temporal relationship supported the plaintiff's claim is Henry v. Detroit, 234 Mich.App. 405, 594 N.W.2d 107 (1999). But unlike plaintiff, the plaintiff in Henry also presented evidence that his superior expressed clear displeasure with the protected activity engaged in by the plaintiff. In contrast to Henry, plaintiff has not shown any reaction or conduct on the part of his supervisors that reasonably suggests that they were upset by the fact that plaintiff reported an assault to the police. Moreover, contrary to the view of the Court of Appeals, the evidence does not show that plaintiff's record was "impeccable" or "unblemished" before the Reeves incident or that the discipline imposed was seemingly undeserved as it was in Henry.
The only evidence plaintiff has shown other than the temporal sequence of events is that one of the two supervisors he notified was nonchalant. This does not amount to evidence from which a reasonable juror could conclude that any adverse employment action directed at plaintiff was related to the police report lodged by plaintiff.
With regard to the employment-discharge decision in particular, plaintiff has presented no evidence connecting his discharge to his report to the police. There is no evidence that the persons conducting the investigation that led to plaintiff's discharge or the persons who made the discharge decision were even aware that plaintiff called the police. The supervisors (Koyal and Tate), whom plaintiff claims he told about the police report, were not involved in the discharge decision.
The Court of Appeals erred in finding that contested facts and permissible inferences present a factual issue for a jury in this case.
Plaintiff did not present evidence that would allow a reasonable juror to find a causal connection between the police report made by plaintiff and the subsequent employment decisions affecting plaintiff. Plaintiff therefore failed to establish a prima facie case under the Whistleblowers' Protection Act. We reverse in part the judgment of the Court of Appeals and reinstate the circuit court order granting defendant summary disposition on plaintiff's whistleblower claim. In all other respects the Court of Appeals decision is affirmed. MCR 7.302(F)(1).
MARILYN J. KELLY, J., dissenting.
The majority holds that plaintiff presented insufficient evidence to support his claim under the Whistleblowers' Protection Act (WPA), M.C.L. § 15.362. In my view, quite the contrary is true. Plaintiff presented entirely sufficient evidence to reach the jury on this claim. Therefore, I dissent.
When reviewing a ruling on a defendant's motion for summary disposition, we must view the evidence in the light most favorable to the plaintiff, the nonmoving party. Maiden v. Rozwood, 461 Mich. 109, 597 N.W.2d 817 (1999). The majority articulates, but neglects to follow, this mandate in ruling for defendant.
To satisfy the elements of his claim, plaintiff must present evidence that (1) he was engaged in protected activity as defined by the act, (2) he was discharged or discriminated against, and (3) a causal link exists between the protected activity and the discharge or adverse employment action. The majority concedes that plaintiff established the first two elements, but holds that he has not established the third, causation. Ante at 472.
One method of determining whether an element has been established is to ask if a party has raised a material question of fact about it. The majority acknowledges that "[a] genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Ante at 471, citing Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604, 609, 566 N.W.2d 571 (1997); Quinto v. Cross & Peters Co., 451 Mich. 358, 369, 547 N.W.2d 314 (1996).
In this case, the record reveals several allegations from which, if they were to be proven, a factfinder could infer causation. First, defendant did not discharge plaintiff until after he "blew the whistle" by reporting the shoving incident to the police. Defendant premised plaintiff's termination of employment on his time sheet problems. Plaintiff had a nearly perfect thirty-year employment history with defendant. However, during the year preceding the whistleblowing, defendant had grown concerned about plaintiff's time sheet errors. Nonetheless it took no action. Then, after
Second, plaintiff denied that the time sheet that led to his firing contained overtime that he did not work. If the trier of fact should find that plaintiff did work the two hours in question, it follows that plaintiff was wrongfully discharged. It could be validly inferred that the wrongful discharge constituted retaliatory action against plaintiff for his whistleblowing. Also, a wrongful discharge shows that there was not the legitimate, nondiscriminatory reason for firing plaintiff that defendant asserts existed.
The majority sidesteps the evidence that constitutes the issues of fact by construing the facts in the light most favorable to defendant. Construing them correctly, in plaintiff's favor, it becomes evident that a question of fact about causation exists in this case. Accordingly, I would affirm the unanimous decision of the Court of Appeals to reverse the summary disposition on the whistleblower count and remand the case to the trial court.
MICHAEL F. CAVANAGH, J., joins the dissenting opinion.