MATTHEW HOOKER V W A FOOTE MEMORIAL HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
MATTHEW HOOKER and DIANE HOOKER,
UNPUBLISHED
March 18, 2004
Plaintiffs-Appellants,
v
No. 245673
Jackson Circuit Court
LC No. 01-004570-CL
W.A. FOOTE MEMORIAL HOSPITAL,
Defendant-Appellee.
Before: Jansen, P.J., and Markey and Gage, P.J.
PER CURIAM.
Plaintiffs appeal by right from an order granting summary disposition in favor of
defendant pursuant to MCR 2.116(C)(10). We affirm.
Plaintiff Matthew Hooker (Hooker), a computer network specialist at defendant hospital,
was terminated on June 1, 2001, after receiving four corrective action documentation forms for
violations of defendant’s progressive corrective action policy which includes four levels of
discipline: a documented verbal warning, a written warning, a final written warning, and, finally,
discharge. Hooker received his first corrective action document form on November 21, 2000,
from supervisor, Clark Beach, for wearing pants which violated defendant’s dress code. On
April 26, 2001, Beach issued Hooker two additional corrective action documentation forms.
One was for a violation of defendant’s dress code, and the second was for unbecoming conduct
or inappropriate behavior arising from Hooker’s profanity to a subordinate employee. On June
1, 2001, Beach issued Hooker the final corrective action documentation form, for which Hooker
was terminated in accordance with defendant’s progressive policy, again for conduct
unbecoming or inappropriate behavior during a meeting with two of Hooker’s superiors. During
his deposition, Hooker admitted that he had engaged in unprofessional behavior during the
meeting by using profanity.
Plaintiffs filed a complaint alleging that Hooker’s termination was retaliatory in violation
of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., because Hooker had
allegedly threatened to report Beach to Microsoft, the Business Software Alliance (BSA), and
the legal authorities when Beach ordered him to illegally uninstall unlicensed software from
defendant’s computers during the course of an internal software licensing audit. The circuit
court
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granted defendant’s motion for summary disposition based on its determination that plaintiffs
had failed to show that Hooker was about to report Beach’s activities to a public body; therefore,
he was not engaged in activity protected under the WPA. Moreover, the circuit court held that
plaintiffs had failed to show that Hooker’s termination was causally connected to his alleged
protected activity.
A trial court’s decision on a motion for summary disposition is reviewed de novo. Hazle
v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). This Court recently stated the
legal standard to be applied when reviewing a motion for summary disposition brought under
MCR 2.116(C)(10) in Kelly-Stehney & Assoc, Inc v MacDonald’s Industrial Products, Inc, 254
Mich App 608, 611-612; 658 NW2d 494 (2003):
A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. Veenstra v Washtenaw Country Club, 466 Mich 155,
163; 645 NW2d 643 (2002). A motion for summary disposition should be granted
when, except in regard to the amount of damages, there is no genuine issue in
regard to any material fact and the moving party is entitled to judgment or partial
judgment as a matter of law. MCR 2.116(C)(10), (G)(4); Veenstra, supra at 164.
In deciding a motion brought under this subsection, the trial court must consider
affidavits, pleadings, depositions, admissions, and other evidence submitted by
the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party.
Veenstra, supra at 164. The moving party has the initial burden of supporting its
position with documentary evidence, but once the moving party meets its burden,
the burden shifts to the nonmoving party to establish that a genuine issue of
disputed fact exists. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d
314 (1996). "Where the burden of proof at trial on a dispositive issue rests on a
nonmoving party, the nonmoving party may not rely on mere allegations or
denials in pleadings, but must go beyond the pleadings to set forth specific facts
showing that a genuine issue of material facts exists." Id. The moving party is
entitled to a judgment as a matter of law when the proffered evidence fails to
establish a genuine issue regarding any material fact. Veenstra, supra at 164.
The WPA states that “[a]n employer shall not discharge . . . an employee . . . because the
employee . . . reports or is about to report, verbally or in writing, a violation or a suspected
violation of a law or regulation . . . to a public body . . . .” MCL 15.362. To establish a prima
facie case under the WPA, a “plaintiff must show that (1) he was engaged in protected activity as
defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between
the protected activity and the discharge.” Chandler v Dowell Schlumberger, Inc, 456 Mich 395,
399; 572 NW2d 210 (1998), citing Shallal v Catholic Social Services, 455 Mich 604, 610; 566
NW2d 571 (1997). In the present case, it is undisputed that Hooker was discharged, so plaintiffs
only had to provide facts from which a trier of fact could reasonably conclude that Hooker had
been engaged in protected activity and that the activity was causally connected to his discharge.
Shallal, supra at 610.
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Plaintiffs first contend that the trial court erred in determining that Hooker was not
engaged in protected activity because he had asserted in his deposition and in an affidavit that he
had informed Microsoft that Beach was proposing to uninstall the software. The circuit court,
however, did not consider this issue and did not reach that conclusion in its order. Moreover,
plaintiffs, in fact, expressly stated during the hearing on defendant’s motion that they were
proceeding only under the “about to report” criterion. Therefore, this issue is not preserved
because plaintiffs did not raise it below, and it was not addressed by the circuit court. Fast Air,
Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999). But, even if plaintiffs had
preserved this issue, Microsoft does not constitute a public body as defined in MCL 15.361(d).
In order for Hooker to be protected by the WPA, plaintiffs had to establish a question of fact
regarding whether he was about to report violations to a public body. Shallal, supra at 610-611.
We believe that plaintiff established such a question of fact. But, in order to satisfy their burden
of establishing a prima facie case, plaintiffs had the additional burden of showing causation.
Shallal, supra at 610. “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.” West v General Motors Corp, 469 Mich 177, 184; 665 NW2d 468 (2003).
Thus, in order to avoid summary disposition, plaintiffs must demonstrate that defendant engaged
in employment action adverse to Hooker “because of” Hooker’s protected activity. They may
not merely rely on a showing that the adverse employment action was taken “after” Hooker
allegedly engaged in protected activity. Id. at 185 (emphasis in West). We conclude that
plaintiffs have failed to meet this requirement.
Here, Hooker testified during his deposition that he had no evidence other than the fact
that the Microsoft audit had occurred and that he had threatened Beach to support his allegation
that the corrective action forms he received after the audit and his subsequent termination were
causally connected to his alleged protected activity. In opposing defendant’s motion for
summary disposition, plaintiffs could not rest upon the allegations stated in their pleadings; they
were required to set forth in affidavits or via other documentary evidence that a genuine issue of
material fact existed. Allen v Comprehensive Health Services, 222 Mich App 426, 433-434; 564
NW2d 914 (1997). Plaintiffs here did not present any such evidence.
Plaintiffs, however, allege that the fact that Hooker was terminated approximately five
months after he allegedly threatened to report Beach provides circumstantial evidence of
causation. Our Supreme Court, however, has recently clarified that “such a temporal
relationship, standing alone, does not demonstrate a causal connection between the protected
activity and any adverse employment action.” West, supra at 186. Instead, “[s]omething more
than a temporal connection between protected conduct and an adverse employment action is
required to show causation where discrimination-based retaliation is claimed.” Id.; see also
Taylor v Modern Engineering, Inc, 252 Mich App 655, 662; 653 NW2d 625 (2002). In respect
to causation, plaintiffs offered only evidence of the temporal proximity, and Hooker’s deposition
testimony that he had received a Foote excellence award in 2000 in an effort to show that
plaintiff possessed a positive employment record before engaging in the protected activity. But,
during his deposition, Hooker concluded that his entire department received an award in 2000
for its handling of the Y2K transition. Moreover, the evidence presented during defendant’s
motion shows that Hooker received the first of the corrective action documents on November 21,
2000, before Hooker allegedly threatened to report Beach in January of 2001. Therefore, we
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conclude that the circuit court correctly determined that plaintiffs failed to establish causation
and, therefore, failed to establish a prima facie case of retaliatory discharge under the WPA.
We affirm.
/s/ Kathleen Jansen
/s/ Jane E. Markey
/s/ Hilda R. Gage
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