JOANN RAMSEY V SPEEDWAY SUPERAMERICA LLC
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STATE OF MICHIGAN
COURT OF APPEALS
JOANN RAMSEY,
UNPUBLISHED
August 14, 2008
Plaintiff-Appellant,
v
SPEEDWAY SUPERAMERICA, L.L.C., and
MICHAEL SICH,
No. 279034
Eaton Circuit Court
LC No. 05-000660-CZ
Defendants-Appellees.
Before: Markey, P.J., and Whitbeck and Gleicher, JJ.
PER CURIAM.
Plaintiff appeals as of right the circuit court’s order granting defendants summary
disposition regarding her claims of defamation and wrongful discharge.1 We affirm.
I. Facts and Proceedings
In May 1989, plaintiff commenced employment with the Emro Marketing
Company. On June 19, 1989, plaintiff signed a document entitled “Nature of
Employment Relationship,” which provided in relevant part,
Set forth below is a list of violations of the Company’s policies and
practices which are most often the cause of discipline and discharge. This
list is not all-inclusive nor does it alter your “at will” employment with the
Company. The Company retains its right to discipline or discharge any
employee at any time for any reason it deems advisable.
***
I have read the above statements and understand that they do not
alter the fact that Emro Marketing Company is an “at will” employer. I
understand that nothing herein or otherwise shall be deemed to create any
contract of employment between myself and the Company, in that, if
1
The circuit court also granted summary disposition of plaintiff’s claim for intentional
infliction of emotional distress, but plaintiff has not appealed this aspect of the circuit
court’s decision.
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employed I realize that my employment may be terminated at will by
either myself or the Company at any time without advance notice and
without cause.
Defendant Speedway SuperAmerica, L.L.C. purchased Emro and continued plaintiff’s
employment. By 2004, plaintiff had become the manager of an Eaton Rapids Speedway
store.
On October 27, 2004, Speedway terminated plaintiff’s employment. Defendant
Michael Sich, a Speedway “advanced district manager” and plaintiff’s direct supervisor,
had accused plaintiff of fraudulently using her husband’s “Speedy Rewards” card to
accumulate points that could be redeemed for goods. Plaintiff strenuously denied misuse
of the card and the Speedy Rewards point program.
Plaintiff filed suit against defendants on May 27, 2005, alleging defamation and
intentional infliction of emotional distress. According to plaintiff’s complaint,
defendants defamed her by communicating “false and defamatory statements” to the
Eaton County Sheriff’s Department and the Michigan Department of Labor and
Economic Growth, Division of Unemployment Appeals.
Plaintiff’s complaint
additionally alleged that Sich defamed plaintiff “to third persons including but not limited
to the new store manager, the speedway (sic) employees, and the Eaton County Sheriff’s
office.” On December 5, 2005, the circuit court granted plaintiff leave to file a first
amended complaint adding a claim for wrongful discharge.
On August 1, 2006, the circuit court entered a “Stipulated Revised Scheduling
Order” that extended the close of discovery through November 5, 2006. On September
27, 2006, defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8)
and (10). Defendants contended that plaintiff failed to “sufficiently identify what
defamatory words were allegedly published by whom and to whom,” contravening the
defamation pleading rules described in Gonyea v Motor Parts Fed Credit Union, 192
Mich App 74; 480 NW2d 297 (1991). Defendants additionally argued that an absolute
privilege shielded Sich’s communications with the Eaton County Sheriff and the
Michigan Department of Labor, and challenged plaintiff’s claim for intentional infliction
of emotional distress on the basis that Sich’s statements did not qualify as outrageous.
Concerning the wrongful discharge count, Speedway asserted that plaintiff’s deposition
acknowledgement of her status as an at-will employee precluded her from maintaining
this claim.
On October 10, 2006, the circuit court stayed the proceedings for 60 days at
plaintiff’s request because she had filed a bankruptcy petition and her counsel was
seeking the bankruptcy trustee’s authorization to represent her in the instant case. The
circuit court renewed the stay for an additional 30 days commencing on February 9,
2007. On March 28, 2007, the bankruptcy trustee authorized plaintiff’s counsel’s
retention. Plaintiff then responded to defendants’ summary disposition motion on April
19, 2007.
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The circuit court conducted a hearing on April 25, 2007, and a month later
rendered a written opinion granting defendants summary disposition. In its opinion, the
circuit court explained that although plaintiff had adequately pleaded the content of
Sich’s “alleged defamatory words,” she did not specifically identify any Speedway
employees who heard them. The circuit court found that Sich’s communications to the
Eaton County Sheriff’s Department, the Michigan Department of Labor, and the
Speedway store manager who succeeded plaintiff qualified as privileged, and thus
dismissed plaintiff’s defamation claims under MCR 2.116(C)(7) and (10). The circuit
court granted summary disposition of plaintiff’s intentional infliction of emotional
distress claim on the basis of its finding that Sich’s actions did not rise to the level of
outrageous conduct. The circuit court also granted summary disposition of plaintiff’s
wrongful discharge claim because she failed to overcome the legal presumption of at-will
employment.
II. Summary Disposition Standard of Review
This Court reviews de novo a circuit court’s summary disposition ruling. Walsh v
Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). A motion for summary
disposition brought under MCR 2.116(C)(7) does not test the merits of a claim, but rather
certain defenses that may eliminate the need for a trial. DMI Design & Mfg, Inc v ADAC
Plastics, Inc, 165 Mich App 205, 208; 418 NW2d 386 (1987). Although neither party
need file supportive material, we will consider any submitted, admissible evidence
supporting or opposing the plaintiff’s claims. Linton v Arenac Co Rd Comm, 273 Mich
App 107, 111; 729 NW2d 883 (2006). “[T]he plaintiff’s well-pleaded factual allegations,
affidavits, and other admissible documentary evidence are accepted as true and construed
in the plaintiff’s favor unless contradicted by documentation submitted by the movant.”
Id. If no material facts remain in dispute, this Court’s analysis under subrule (C)(7)
parallels that employed under (C)(10). Id. at 111-112.
“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.” West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003). When reviewing a motion invoking subrule (C)(10), this Court considers the
pleadings, admissions, affidavits, and other relevant record evidence in the light most
favorable to the nonmoving party to determine whether any genuine issue of material fact
exists warranting a trial. Walsh, supra at 621. “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.” West, supra at 183.
III. Summary Disposition Analysis
A. Timing of Summary Disposition
Plaintiff first contends that the circuit court prematurely granted summary
disposition because (1) Speedway failed to “specifically inquire of its employees”
whether they “communicated . . . defamatory statements about her”; (2) Speedway had
not yet produced videotapes that would “prove [plaintiff’s] innocence” of misusing the
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Speedway Rewards program, and (3) plaintiff needed to depose additional Speedway
employees to determine whether Sich made defamatory statements in their presence.
“A motion for summary disposition under MCR 2.116(C)(10) is premature if
discovery has not closed, unless there is no fair likelihood that further discovery would
yield support for the nonmoving party’s position.” St Clair Medical, PC v Borgiel, 270
Mich App 260, 271; 715 NW2d 914 (2006). A party opposing summary disposition on
the ground of incomplete discovery “must provide some independent evidence that a
factual dispute exists.” Michigan Nat’l Bank v Metro Institutional Food Service, Inc, 198
Mich App 236, 241; 497 NW2d 225 (1993). Although this Court generally construes
discovery rules broadly, “Michigan’s commitment to open and far-reaching discovery
does not encompass ‘fishing expeditions.’” VanVorous v Burmeister, 262 Mich App 467,
477; 687 NW2d 132 (2004) (citation omitted).
Defendants moved for summary disposition approximately five weeks before
discovery closed on November 5, 2006. By October 10, 2006, when the circuit court
stayed the proceedings, the parties had engaged in approximately 18 months of discovery
and the circuit court had entered three orders extending the discovery period. Plaintiff
obtained depositions from Sich, two members of the Eaton County Sheriff’s Department
and two Speedway employees. These depositions failed to reveal any evidence that Sich
had unlawfully published defamatory statements regarding plaintiff.2 When the circuit
court lifted the stay of proceedings in March 2007, plaintiff did not request additional
time for discovery.
Although plaintiff claims that Speedway failed to “specifically inquire” of its
employees about their knowledge of any defamatory statements concerning plaintiff, she
has produced no evidence suggesting that any additional inquiry would likely have
yielded relevant information. Plaintiff identified only one Speedway employee, Angie
Rawson, who allegedly had discussed her termination with Sich. But plaintiff conceded
that she had no specific knowledge regarding the contents of the Sich-Rawson discussion,
plaintiff inexplicably failed to present Rawson’s testimony to the circuit court, and she
produced no other evidence of this alleged defamation.
In summary, plaintiff offers only her conjecture that Sich publicly reviled her, and
nothing disclosing a fair chance of finding additional factual support for her defamation
claim. Plaintiff’s asserted need for additional Speedway videotapes is unavailing because
the truth or falsity of Sich’s statements regarding plaintiff’s alleged misuse of the Speedy
Rewards program lacks any relevance to defendant’s summary disposition motion, which
did not challenge plaintiff’s claim that Sich’s statements qualified as defamatory. We
therefore conclude that the circuit court afforded plaintiff ample time and opportunity to
discover evidence supporting her defamation claims, and that it did not prematurely grant
summary disposition.
2
Plaintiff did not file with the circuit court the deposition transcript of Angie Rawson,
one of the two Speedway employees deposed.
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B. Signed Authorization for Release of Information
Plaintiff next contends that the circuit court erred by concluding that a privilege
shielded Speedway’s communications with the Eaton County Sheriff’s Department.
Plaintiff had served as a volunteer member of the department’s “mounted patrol.” Carrie
Winters, a Speedway cashier, told a sheriff’s deputy that plaintiff had been fired and that
“there was (sic) some allegations of drug use.” The sheriff’s department then sought
additional information regarding plaintiff’s termination, and requested that plaintiff sign a
release authorizing Speedway to disclose her employment information. On appeal,
plaintiff does not challenge the circuit court’s finding that a qualified privilege protected
Speedway’s communication with the sheriff’s department, but instead contends that
Speedway failed to timely plead the existence of the release as an affirmative defense.
According to MCR 2.111(F)(3), “Affirmative defenses must be stated in a party’s
responsive pleading, either as originally filed or as amended in accordance with MCR
2.118.” An amended pleading “supersedes the former pleading” unless otherwise
indicated. MCR 2.118(A)(4).
Contrary to plaintiff’s argument, defendants did not “waive” a release-based
affirmative defense by failing to timely plead it. Defendants filed amended affirmative
defenses in accordance with the circuit court’s December 5, 2005 order, and the
amendments included a defense concerning “the Authorization for Release of
Information signed by Plaintiff on January 4, 2005.” Furthermore, plaintiff’s contention
that the amended affirmative defenses do not “relate back” is simply incorrect. The
relation-back doctrine validates claims that would be otherwise barred by the statute of
limitations, and thus has no application here. Smith v Henry Ford Hosp, 219 Mich App
555, 558; 557 NW2d 154 (1996).
Plaintiff next contends that the document she signed authorizing disclosure of
information “was not with Speedway who is not released from anything.” According to
plaintiff’s brief on appeal, “The Sheriff’s Department’s potential liability was released by
obtaining or receiving information about Ms. Ramsey, not Speedway.” (Emphasis in
original).
We review de novo the interpretation of a release and whether a privilege applies
in a defamation action. Tomkiewicz v Detroit News, Inc, 246 Mich App 662, 669; 635
NW2d 36 (2001); Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 13; 614
NW2d 169 (2000). “The scope of a release is governed by the intent of the parties as it is
expressed in the release. If the text in the release is unambiguous, the parties’ intentions
must be ascertained from the plain, ordinary meaning of the language of the release.”
Cole, supra at 13. A communication is privileged if the subject of the communication
consented to it. Hollowell v Career Decisions, Inc, 100 Mich App 561, 575; 298 NW2d
915 (1980). The privilege applies if “(1) there was either express or implied consent to
the publication; (2) the statements were relevant to the purpose for which consent was
given; and (3) the publication of those statements was limited to those with a legitimate
interest in their content.” 50 Am Jur 2d, Libel & Slander, § 254, p 592.
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The authorization, directed “To Whom It May Concern,” permitted any recipient
to provide the Eaton County Sheriff information regarding plaintiff’s “employment
history” and the “terms/reasons for separation.” The authorization additionally stated that
any information conveyed was “for official use by the Eaton County Sheriff’s Office,”
and continued in relevant part as follows:
I hereby release you, the institution or establishment which you
represent, including its officers, employees, and related personnel, both
individually and collectively, from any and all liability for damages of
whatever kind, which may at any time result to me, my heirs, family or
associates because of compliance with this Authorization for Release of
Information, or any attempt to comply with it.
At her deposition, plaintiff acknowledged her understanding that the authorization
permitted Speedway to provide the Eaton County Sheriff’s Department information
regarding the reasons for her termination.
We find no merit in plaintiff’s suggestion that the authorization did not apply to
Speedway, its sole recipient. Applying the release construction principles to this case, the
clear and express terms of the release given by plaintiff encompass “the institution or
establishment” that “compl[ied]” with it. We conclude that the circuit court properly
determined that the release unambiguously permitted Speedway to provide the sheriff
with employment information about plaintiff, and absolved Speedway of any potential
liability attending its compliance with the sheriff’s request.
Plaintiff contends that Batshon v Mar-Que Gen Contractors, Inc, 463 Mich 646;
624 NW2d 903 (2001), supports her argument that the release did not shield Speedway
from liability. In Batshon, however, the language of the release specifically referred to a
single released party. Id. at 648-650. Here, the release plainly and unambiguously
permits any recipient to provide employment information to the Eaton County Sheriff,
and releases the provider of information from “all liability . . . because of compliance
with this Authorization for Release of Information.” Plaintiff consented to the disclosure
of employment information and knew that Speedway would communicate with the
sheriff’s department regarding the reasons for her termination. Therefore, we reject
plaintiff’s claim that the release did not encompass Speedway.
C. Wrongful Discharge Claim
Plaintiff lastly asserts that the circuit court erred by concluding that she was an atwill Speedway employee because she only signed a 1989 at-will employment agreement
with Emro Marketing, not with Speedway. Plaintiff additionally contends that Sich’s
deposition testimony supports her claim that Speedway could fire her only for just cause.
“Generally, and under Michigan law by presumption, employment relationships
are terminable at the will of either party.” Lytle v Malady (On Rehearing), 458 Mich
153, 163; 579 NW2d 906 (1998) (opinion by Weaver, J.). The presumption of at-will
employment can be rebutted “with proof of either a contract provision for a definite term
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of employment, or one that forbids discharge absent just cause.” Id. at 164. Statements
by management personnel may create a “legitimate expectation of termination for cause
only.” Gonyea, supra at 83. However, a statement regarding job security must qualify as
“clear and unequivocal” to support a claim for just cause employment. Lytle, supra at
164.
Regardless of the at-will employment agreement plaintiff signed with Emro,
plaintiff clearly understood that her Speedway employment could be terminated at will.
Plaintiff admitted during her deposition that Speedway was “an at will employer.”
Speedway’s employee handbook unequivocally states that Speedway “is an at-will
employer and reserves the right to discharge or terminate an associate at any time, for any
reason, or no reason at all, with or without notice.” (Emphasis in original). Given
plaintiff’s deposition testimony and the plain at-will language contained in the Speedway
handbook, we conclude that plaintiff could not reasonably have believed that Sich’s
general statements, that he had to “follow through with documentation and just cause
[i.e., violation of Speedway policies or procedures] to terminate an employee,” modified
the express terms of her employment, as described in Speedway’s policy manual.
Affirmed.
/s/ Jane E. Markey
/s/ William C. Whitbeck
/s/ Elizabeth L. Gleicher
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