STATE OF MICHIGAN
COURT OF APPEALS
DANIEL P. MCMANAMON,
December 5, 2006
No. 262040; 263260
Wayne Circuit Court
LC No. 99-920173-CZ
CHARTER TOWNSHIP OF REDFORD,
KEVIN KELLEY and R. MILES HANDY II,
Before: Hoekstra, P.J., and Meter and Donofrio, JJ.
In Docket No. 262040, defendant Charter Township of Redford (defendant) appeals as of
right from a judgment for plaintiff in this action involving the Employee Right to Know Act
(ERKA), MCL 423.501 et seq. In Docket No. 263260, defendant appeals as of right from an
“Order Granting Plaintiff’s Motion for Statutory Costs and Attorney Fees as Well as Case
Evaluation Sanctions.” We affirm the trial court’s denial of defendant’s motion for summary
disposition, reverse the trial court’s denial of defendant’s motion for a new trial, vacate the trial
court’s order granting sanctions, and remand this case for further proceedings.
Defendant first argues that the trial court erred in denying its motion for summary
disposition because plaintiff failed to show that defendant violated ERKA. We disagree.
This Court reviews de novo a trial court’s grant or denial of summary disposition.
McManamon v Redford Twp, 256 Mich App 603, 610; 671 NW2d 56 (2003). Statutory
construction is a question of law that we also review de novo. Twichel v MIC Gen Ins Corp, 469
Mich 524, 528; 676 NW2d 616 (2004).
A motion filed under MCR 2.116(C)(10) tests the factual support for a claim, Dressel v
Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), and should be granted when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Miller v Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001). When the burden of proof at
trial would rest on the nonmoving party, the nonmovant may not rely on mere allegations or
denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that
there is a genuine issue for trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d
314 (1996). A genuine issue of material fact exists when the record, viewed in the light most
favorable to the nonmoving party, leaves open an issue on which reasonable minds could differ.
West v GMC, 469 Mich 177, 183; 665 NW2d 468 (2003). When deciding a motion for summary
disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits,
depositions, admissions, and other documentary evidence filed in the action. MCR 2.116(G)(5);
Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999).
Section 6 of ERKA, MCL 423.506, provides, in pertinent part:
(1) An employer or former employer shall not divulge a disciplinary
report, letter of reprimand, or other disciplinary action to a third party, to a party
who is not a part of the employer’s organization, or to a party who is not a part of
a labor organization representing the employee, without written notice as provided
in this section.
(2) The written notice to the employee shall be by first-class mail to the
employee’s last known address, and shall be mailed on or before the day the
information is divulged from the personnel record. [Emphases added.]
Thus, an employer cannot divulge “disciplinary action” to a third party without mailing the
employee in question notice on or before the disclosure. Notably, the statute does not forbid the
disclosure; it merely requires that the employee receive notice of the disclosure.
Section 11 provides remedies:
If an employer violates this act, an employee may commence an action in
the circuit court to compel compliance with this act. . . . [T]he court shall award
an employee prevailing in an action pursuant to this act the following damages:
(a) For a violation of this act, actual damages plus costs.
(b) For a wilful and knowing violation of this act, $200.00 plus costs,
reasonable attorney’s fees, and actual damages. [MCL 423.511.]
Defendant argues that Redford Township Supervisor Kevin Kelley’s statements to the
Redford Observer newspaper did not “divulge” disciplinary information, because the reporter
already had extensive information about plaintiff’s case. We disagree.
“Well established principles guide this Court’s statutory construction efforts. We begin
our analysis by consulting the specific statutory language at issue.” Bloomfield Charter Twp v
Oakland Co Clerk, 253 Mich App 1, 10; 654 NW2d 610 (2002). This Court gives effect to the
Legislature’s intent as expressed in the statute’s terms, giving the words of the statute their plain
and ordinary meaning. Willett v Charter Twp of Waterford, 270 Mich App 38, 48; 718 NW2d
386 (2006). When the language poses no ambiguity, this Court need not look outside the statute,
nor construe the statute, but need only enforce the statute as written. Travelers Ins v U-Haul,
235 Mich App 273, 279; 597 NW2d 235 (1999). This Court does not interpret a statute in a way
that renders any statutory language surplusage or nugatory. Pohutski v City of Allen Park, 465
Mich 675, 684; 641 NW2d 219 (2002).
Because the statute at issue here does not define “divulge,” we use a dictionary definition.
Pierce v Lansing, 265 Mich App 174, 178; 694 NW2d 65 (2005). Random House Webster’s
College Dictionary (1997) defines “divulge” to mean: “to disclose or reveal (something private,
secret, or previously unknown).” Thus, to trigger the notice requirement, the employer must
disclose or reveal something private, secret, or previously unknown.
Here, the July 3, 1997, Redford Observer article quoted Kelley as stating that “‘[t]he
issue [of the embezzlement] is under review’” and stated: “McManamon was suspended due to
problems in the performance of his day-to-day duties beyond the embezzlement charge, Kelley
said.” The fact that Kelley disclosed to the Redford Observer that plaintiff was suspended
constitutes a disclosure of “disciplinary action,” MCL 423.506(1), because a suspension qualifies
as disciplinary action. There was no evidence that at the time Kelley spoke with Redford
Observer reporter Bill Casper, plaintiff’s suspension was already a matter of public record;1
therefore, Kelley “divulged” that fact to Casper. Because there was no evidence that defendant
complied with the notice requirements of ERKA, the divulging of disciplinary action against
plaintiff, without giving plaintiff notice, was a violation of the act. The trial court did not err in
denying summary disposition to defendant.
Defendant argues that public policy favors allowing public officials to give the press and
the public full and complete information regarding public acts of public officials that are of
legitimate public interest. Defendant relies on the Freedom of Information Act (FOIA), MCL
15.231 et seq. MCL 15.231(2) states that it is the public policy of the state that all persons are
entitled to full and complete information regarding the affairs of government and the official acts
of public officials. However, Casper had not submitted an FOIA request to Kelley regarding
plaintiff. Therefore it cannot be held that FOIA authorized Kelley’s divulgence without notice.
Moreover, defendant’s argument misconstrues plaintiff’s claim. Plaintiff’s ERKA claim
is not that Kelley had no right to make the divulgence to the press regarding plaintiff’s
disciplinary action. Rather, the claim is that Kelley had no right to make the divulgence without
giving notice to plaintiff in accord with ERKA. MCL 423.506. In other words, Kelley was free
to make the disclosure to the press and the public, but defendant was required, before or on the
same day as making the divulgence, to mail notice to plaintiff. MCL 423.506(2).
Defendant next argues that Kelley’s statements to the press were constitutionally
protected under the First Amendment and that ERKA should not be construed to abrogate a
constitutionally protected right. This argument lacks merit. Kelley’s statements to the press may
indeed be constitutionally protected, and it is assumed that they are. However, that is beside the
By July 1, 1997, the embezzlement charge against plaintiff was a matter of public record.
However, the indictment of plaintiff was a reason for his suspension; it was not the “disciplinary
point. Plaintiff’s claim is not that Kelley had no right to make the statements, but that Kelley
was required by ERKA to give plaintiff notice of the divulgence. MCL 423.506. Therefore,
ERKA is not being interpreted to abrogate a constitutionally protected right. Rather, ERKA is
being interpreted, in accord with its plain language, to authorize plaintiff to receive damages for
Kelley’s failure to comply with the notice requirement.
Because (1) Kelley did not comply with ERKA’s notice requirement, (2) Kelley divulged
to a third party “disciplinary action” taken against plaintiff (his suspension), and (3) ERKA does
not abrogate Kelley’s right of speech, the trial court correctly denied summary disposition to
defendant regarding plaintiff’s ERKA claim.
Defendant next argues that the trial court erred in denying its motion for a new trial
because the jury’s verdict was clearly excessive and unsupported by the evidence. We agree.
A trial court’s decision regarding a motion for a new trial is reviewed for an abuse of
discretion. Morinelli v Provident Ins Co, 242 Mich App 255, 261; 716 NW12d 777 (2000). An
abuse of discretion occurs when a court chooses an outcome that is not within the principled
range of outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 372 (2006).
The abuse of discretion standard is more deferential than review de novo, but less deferential
than the standard of review articulated in Spalding v Spalding, 355 Mich 382; 94 NW2d 810
(1959).2 Maldonado, supra at 388.
MCR 2.611(A) provides: “A new trial may be granted . . . for any of the following
reasons: . . . . (d) A verdict clearly or grossly inadequate or excessive. . . .” Defendant argues
that the evidence failed to show that defendant’s failure to provide notice of the divulgence of the
disciplinary action caused plaintiff $100,000 in damages.
Speculation in proving causation is prohibited. See, e.g., Skinner v Square D Co, 445
Mich 153, 166; 516 NW2d 475 (1994), and Ensink v Mecosta Co Gen Hosp, 262 Mich App 518,
524-525; 687 NW2d 143 (2004). The proofs must “amount to a reasonable likelihood . . . rather
than a possibility. The evidence need not negate all other possible causes, but . . . must exclude
other reasonable hypotheses with a fair amount of certainty.” Skinner, supra, p 166 (internal
citation and quotation marks omitted).
Plaintiff’s evidence failed to exclude, to a reasonable amount of certainty, other
reasonable hypotheses of causation of his damages. The evidence suggests that it was the
publication by the Redford Observer, not the failure to give notice of the divulgence to the
Redford Observer, that caused plaintiff (1) to receive no offer from the Livonia Hockey
Association, and (2) to feel devastated. Plaintiff testified that he felt upset “[b]ecause I was not
notified that this was coming out in the paper.” The article relating to his discharge made
In Spalding, supra at 384-385, the Supreme Court held that an abuse of discretion occurs when
the result reached by a court is “so palpably and grossly violative of fact and logic that it
evidences not the exercise of will but perversity of will, not the exercise of judgment but
defiance thereof, not the exercise of reason but rather of passion or bias.”
plaintiff “very upset,” in particular because he was depicted in a front-page photograph in
handcuffs. In our opinion, plaintiff simply never proved at trial that he was harmed by failing to
receive notice of the divulgence to the Redford Observer. Indeed, plaintiff never testified at trial,
with specificity, that he was harmed by failing to receive notice of the divulgence to the Redford
One of the articles about plaintiff was discussed by the board members of the Livonia
Hockey Association before its job interview of plaintiff. The board did not feel comfortable
offering plaintiff a job under the circumstances. The major deciding factors were the criminal
charges “and the fact that he had been terminated by the township of Redford.” The Redford
Observer would nonetheless have published the fact of plaintiff’s termination even if defendant
had complied with the notice requirement of MCL 423.506(2).4 Therefore, plaintiff still would
not have received an offer from the Livonia Hockey Association, even if defendant had complied
with the notice requirement of MCL 423.506(2).
There was no adequate evidence that the failure to give notice of the divulgence caused
the harm of which plaintiff complains. In other words, there was no evidence that had defendant
complied with MCL 423.506(2), plaintiff (1) would not have been rejected by the Livonia
Hockey Association, or (2) would not have felt devastated by the publications by the Redford
Observer of the disciplinary action. The verdict was based on pure speculation and conjecture.
Because there was no evidence that the failure to give notice of the divulgence of
disciplinary action caused harm to plaintiff, the verdict lacked evidentiary support. Because the
verdict was not supported by the evidence, the trial court abused its discretion in failing to grant
defendant’s motion for a new trial.
Defendant next argues that the trial court erred in denying its motion for a new trial
because the trial court allowed the jury to assess damages, as opposed to the trial court doing so.
This issue is largely mooted by our resolution of the prior issue. Ewing v Bolden, 194 Mich App
95, 104; 486 NW2d 96 (1992). However, because it may arise on remand, we will address the
issue briefly. Contrary to defendant’s argument, ERKA does not require that the trial court
determine the amount of damages in an ERKA case. Instead, ERKA merely states that the court
“shall award” damages. MCL 423.511. Making an award of damages is different from
determining the amount of damages. Damages are an issue of fact, and questions of fact are, of
course, generally decided by the trier of fact – in this case, the jury. See, e.g., Ensink, supra, 262
We note that in a prior appeal in this case, this Court stated that “the notice is intended to
provide the employee with notice of the disclosure so that the employee can counter such reports
with which there is disagreement.” McManamon v Redford Charter Twp, 256 Mich App 603,
613, n 5; 671 NW2d 56 (2003).
Indeed, there is no evidence that, had defendant complied with MCL 423.506(2), the Redford
Observer would not have published the information about the disciplinary action or the criminal
charges against plaintiff.
Mich App 525. Given the lack of statutory language to the contrary, the amount of damages here
is for the jury to decide.5
Defendant next argues that the trial court’s award of case evaluation sanctions cannot be
sustained. Because defendant has prevailed, in pertinent part, in this appeal, we agree. “[I]t is
the ultimate verdict that the parties are left with after appellate review is complete that should be
measured against the case evaluation to determine whether sanctions should be imposed on a
rejecting party pursuant to MCR 2.403(O).” Keiser v Allstate Ins Co, 195 Mich App 369, 374375; 491 NW2d 581 (1992). Because we reverse the trial court’s denial of defendant’s motion
for a new trial and remand for a new trial, we also vacate the trial court’s award of case
We affirm the trial court’s denial of defendant’s motion for summary disposition, reverse
the trial court’s denial of defendant’s motion for a new trial, vacate the trial court’s order
granting sanctions, and remand for further proceedings consistent with this opinion. We do not
/s/ Patrick M. Meter
/s/ Pat M. Donofrio
Defendant also argues that the damages awarded in this case were not properly awardable
because plaintiff did not first show that defendant failed to abide by a court order compelling
compliance with ERKA and because the damages awarded were not incurred in connection with
an action to compel compliance. However, this argument was rejected during the earlier appeal
in this case. See McManamon, supra at 609-614.