SHAPIRO, P.J.
In this employment termination case, plaintiff Barbara Pace appeals by right the trial court order granting summary disposition in favor of defendants under MCR 2.116(C)(10) (no genuine issue of material fact) on plaintiff's two claims: (1) that her employment was terminated in violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and, alternatively, (2) that her discharge was against public policy. For the reasons discussed in this opinion, we reverse the trial court's grant of summary disposition on the WPA claim, but affirm the trial court's grant of summary disposition on the claim of discharge against public policy.
Defendants in this action are: SIREN/Eaton Shelter, Inc. (SIREN), an organization devoted to helping domestic violence victims and the homeless in Eaton
Plaintiff testified that, in August 2011, she became concerned about what she viewed as discrepancies in grant records; she believed that grant money was being used to make unauthorized purchases. Plaintiff claimed that she discussed her concerns with Edel-Harrelson. However, Edel-Harrelson testified that no such discussion ever took place. She did acknowledge that plaintiff asked her for "clarification" concerning alleged grant discrepancies.
Plaintiff testified that, on December 9, 2011, Long came to her and stated that she knew there was money remaining in a certain grant fund. Plaintiff stated that Long told her that Long's daughter needed a new stove but could not afford one. Plaintiff claimed that Long then told her she was going to use grant money to purchase the stove for her daughter; plaintiff felt that Long implied that plaintiff should document the transaction in an attempt to cover up the unauthorized purchase. At her deposition, Long denied ever using grant funds for this purpose, or indeed ever discussing such a purchase with plaintiff.
Plaintiff testified that, following this conversation with Long, she immediately contacted Nancy Oliver, Edel-Harrelson's predecessor as the director of SIREN, to discuss the situation. Oliver suggested that plaintiff contact her supervisors, Carol Chandler and Martha Miller. According to plaintiff, she called Chandler and spoke with her for approximately 45 minutes, after which Chandler stated that she would report the matter to Miller and take care of the situation. Plaintiff stated that this procedure observed SIREN's chain of command for reporting such issues.
Plaintiff testified that she was unsatisfied with the lack of action and so, in late December 2011 or early January 2012, she reported her suspicions directly to Edel-Harrelson. She stated that, at that time, she believed that Long had already purchased the stove with grant funds. Plaintiff claimed that Edel-Harrelson told her that she would look into the matter and discuss it with Chandler and Miller. However, in her deposition, Edel-Harrelson claimed to have no recollection of this discussion with plaintiff. Edel-Harrelson also testified that she had not been approached by Chandler or Miller regarding plaintiff's claim; indeed, she stated that she had no knowledge of the alleged conversation between plaintiff and Long. Edel-Harrelson did eventually investigate plaintiff's claim against Long and found no wrongdoing; however, that investigation occurred only after plaintiff filed her complaint in the instant action in April 2012.
SIREN's stated reason for terminating plaintiff's employment was plaintiff's own allegedly harassing and intimidating behavior toward a fellow employee. A letter addressed to plaintiff from Edel-Harrelson, dated January 22, 2012, states in relevant part:
Defendants presented evidence to support this reason for plaintiff's termination. On or about January 10, 2012, plaintiff, in the presence of witnesses, made an inappropriate comment to a coworker. Plaintiff admitted making the comment as a joke. When Carol Hatch, a coworker who witnessed the comment, told plaintiff that the remark had been inappropriate, plaintiff asked if Hatch wished to go "toe to toe" with her.
According to Edel-Harrelson, Miller met with plaintiff on January 12, 2012, to deliver the verbal warning. Edel-Harrelson testified that plaintiff became angry and walked out of the meeting. After leaving the meeting, plaintiff apparently
After consulting with SIREN's personnel committee, Edel-Harrelson decided to terminate plaintiff's employment for the reasons cited in the January 22, 2012 letter. Plaintiff was informed of her firing in a meeting with Edel-Harrelson and Miller on January 18, 2012, and her employment was formally terminated on January 21, 2012.
On April 12, 2012, plaintiff brought the instant action, alleging two counts: that her termination was in violation of the WPA and constituted a retaliatory discharge in violation of public policy. On August 21, 2013, defendants moved for summary disposition, arguing that plaintiff could not establish a prima facie case under the WPA because (1) no conduct had occurred that could be considered a violation or suspected violation of law and, therefore, plaintiff had not engaged in protected activity, and (2) plaintiff could not establish a causal connection between her alleged report of a suspected violation of law and her termination. Defendants further argued that there was no applicable public policy basis to support plaintiff's claim of discharge against public policy.
On November 6, 2013, the trial court granted summary disposition in favor of defendants, ruling that plaintiff failed to establish that a violation or suspected violation of law occurred and that there was no public policy basis on which to assert her claim of discharge against public policy.
Plaintiff argues that the trial court erred by granting defendants' motion for summary disposition on her WPA claim. We agree.
MCL 15.362 provides:
"`To establish a prima facie case under [MCL 15.362], a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action.'" Shaw v. Ecorse, 283 Mich.App. 1, 8, 770 N.W.2d 31 (2009), quoting West v. Gen. Motors Corp., 469 Mich. 177, 183-184, 665 N.W.2d 468 (2003). In this case, it is undisputed that plaintiff was discharged from her employment, thus satisfying the second element.
In their motion for summary disposition, defendants argued, and the trial court later agreed, that plaintiff had not engaged in protected activity because, at most, she reported a "possible future violation" of the law, not a "violation or a suspected violation" of law and that, even taking plaintiff's deposition testimony as true, Long merely announced her intention to commit a violation of law in the future, which was insufficient to constitute either the crime of embezzlement or attempted embezzlement.
Contrary to the parties' contention, this case does not present an issue of first impression. In Debano-Griffin v. Lake Co., 486 Mich. 938, 782 N.W.2d 502 (2010),
In lieu of granting the plaintiff's application for leave to appeal, the Supreme Court reversed, writing:
As in Debano-Griffin, this case does not involve a suspected violation of a suspected law. It concerns a suspected violation of an actual law. Defendants do not argue that if Long purchased a stove for her daughter with grant funds (or took sufficient steps to constitute an attempt of such a purchase), she would not have committed the crime of embezzlement (or attempted embezzlement). See MCL 750.174. This case then turns on whether plaintiff reported a "suspected violation of a law." MCL 15.362. By protecting employees who report a "violation or a suspected violation" of a law, the Legislature did not intend that an employee must report an actual violation of law. See Bush v. Shabahang, 484 Mich. 156, 166-167, 772 N.W.2d 272 (2009) (noting that a statute must be read as a whole and effect should
In her deposition, plaintiff stated that at the time of her report, she believed Long had purchased the stove. Therefore, defendants' argument that plaintiff only suspected that Long might do so in the future is inconsistent with the record. More broadly, we reject defendants' suggestion that, when an employee has a good faith and reasonable belief that a violation of the law has either already occurred or is being actively planned, the report of that belief is insufficient to trigger the protections of the WPA. Defendants' argument suggests that no matter how serious a violation is being planned, an employee who learns of the plan must (a) report the planned violation without the benefit of the protections the Legislature provided in the WPA, (b) remain silent until the violation occurs, or (c) undertake his or her own investigation to determine whether and when the planned violation has been completed. The first two options are inconsistent with the language of the WPA and the third option would be foolish, if not dangerous and potentially unlawful. Requiring that an employee wait until he or she is certain that the violation is complete is also inconsistent with the intent of the WPA, i.e., the protection of the public. Anzaldua, 292 Mich.App. at 631, 808 N.W.2d 804. The WPA meets this goal by protecting "employee efforts to report violations or suspected violations of the law." Id. (quotation marks and citation omitted).
Defendants argue and offer testimony that the conversation between plaintiff and Long never occurred. However, the law requires that we view plaintiff's deposition testimony in the light most favorable to her for purposes of defendants' motion under MCR 2.116(C)(10). Ernsting v. Ave Maria College, 274 Mich.App. 506, 509, 736 N.W.2d 574 (2007). Ultimately, a jury must make the factual determination of whether or not the conversation occurred and, if so, what was said. However, the conversation between plaintiff and Long, as plaintiff testified to in her deposition, is sufficient to allow a jury to conclude that plaintiff reasonably suspected a violation of law, whether completed or actively planned. Thus, viewing the evidence in the light most favorably to plaintiff, she "reported a suspected violation of an actual law," which constitutes "protected activity" and is sufficient to establish the first element of a prima facie case under the WPA. Debano-Griffin, 486 Mich. at 938, 782 N.W.2d 502. The trial court erred by ruling to the contrary.
In their motion for summary disposition, defendants also argued that plaintiff could not establish the necessary causal connection between her alleged protected activity and her termination. Although the trial court did not rule on this issue, we are inclined to address it. See Heydon v. MediaOne, 275 Mich.App. 267, 278, 739 N.W.2d 373 (2007) (holding that this Court may address an issue not ruled on by the trial court if it presents a question of law and all the facts necessary for its resolution have been presented). And we conclude that questions of fact exist regarding causation sufficient to render summary disposition under MCR 2.116(C)(10) inappropriate on this alternative basis.
Establishing causation in a WPA claim requires application of the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Debano-Griffin v. Lake Co., 493 Mich. 167, 175-176, 828 N.W.2d 634 (2013).
Plaintiff appears to concede that she has not advanced direct evidence of retaliation. As discussed, plaintiff asserts that she was terminated for reporting Long's violation or planned violation of law, and defendants rebut that assertion by claiming that plaintiff was terminated for physically intimidating her coworkers. However, both of these factual assertions are far from established. Long claims that she never told plaintiff that she planned to buy her daughter a stove with grant funds, and Edel-Harrelson claims that plaintiff never reported to her such a conversation. By contrast, the allegation that plaintiff engaged in physically intimidating behavior is supported by Hatch's affidavit, but plaintiff claims that she did not engage in physically intimidating behavior toward Hatch. Shegitz's affidavit, which defendants purport corroborates Hatch's account, is unpersuasive. Shegitz only averred that she witnessed plaintiff "glare[ ]" at Hatch and say something "along the lines of `Thanks a lot,'" but could not "recall the rest." Put simply, both asserted reasons for plaintiff's termination are grounded in conflicting testimony and questions of witness credibility. The weight to be given to this conflicting evidence is a question reserved for the finder of fact. See, e.g., People v. Harrison, 283 Mich.App. 374, 378, 768 N.W.2d 98 (2009).
These factual uncertainties must be resolved before conducting a meaningful burden-shifting analysis under McDonnell Douglas. Nonetheless, defendants argue that, even viewing the facts in the light most favorable to plaintiff, she cannot establish a causal connection between her alleged protected activity and her termination. Defendants assert that plaintiff has established no more than a temporal relationship between her claimed reporting of her conversation with Long and her termination and note that "a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action." West, 469 Mich. at 186, 665 N.W.2d 468. However, viewing the evidence in the light most favorable to plaintiff, her causation argument is not simply based upon a temporal relationship. She claims, and has testified, that the events for which defendants claim she was terminated never occurred. If the jury finds her credible and concludes that defendants' asserted reason for firing her was
In sum, the issue of causation presents a genuine factual dispute and, therefore, the trial court improperly granted summary disposition in favor of defendants on plaintiff's WPA claim. See Auto Club Ass'n v. Sarate, 236 Mich.App. 432, 437, 600 N.W.2d 695 (1999) ("The existence of [a] factual dispute means that summary disposition was improperly granted to defendant.").
Before the trial court and on appeal, plaintiff acknowledged that her claim of discharge against public policy was pleaded in the alternative to her WPA claim and that we would only need to address her public policy claim if we were to affirm the trial court's grant of summary disposition in favor of defendants on her WPA claim. In other words, plaintiff concedes that her public policy claim need only be allowed to proceed if she fails to establish a prima facie case under the WPA. This position is consistent with the applicable law. See Anzaldua, 292 Mich.App. at 631, 808 N.W.2d 804 ("The WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity. However, if the WPA does not apply, it provides no remedy and there is no preemption.") (citations omitted). Accordingly, we affirm the trial court's grant of summary disposition in favor of defendants on plaintiff's public policy claim and need not address the merits of that decision. See Taylor v. Laban, 241 Mich.App. 449, 458, 616 N.W.2d 229 (2000) (stating that this Court need not reverse a trial court's ruling when it reached the right result, even if for the wrong reason).
We reverse the trial court's grant of summary disposition in favor of defendants on plaintiff's WPA claim and remand for proceedings consistent with this opinion. We affirm the trial court's grant of summary disposition in favor of defendants on plaintiff's claim of discharge against public policy. We do not retain jurisdiction.
GLEICHER and RONAYNE KRAUSE, JJ., concurred with SHAPIRO, P.J.