SCOTT FOUBARE V ACCU-MOLD INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
July 14, 1998
Kalamazoo Circuit Court
LC No. 96-003286-NZ
Before: Corrigan, C.J., and Hoekstra and Young, Jr., JJ.
In this employment action alleging a violation of the Bullard-Plawecki Employee Right to Know
Act, MCL 423.501 et seq.; MSA 17.62(1) et seq., plaintiff appeals by right the order granting
summary disposition for defendant under MCR 2.116(C)(8). We affirm.
Defendant employed plaintiff from June 20, 1995 until he was discharged on July 17, 1996. On
October 2, 1996, and again one week later, plaintiff requested a copy of his personnel file from
defendant. Defendant invited plaintiff to schedule an appointment so he could review his file at
defendant’s office. On October 24, 1996, plaintiff’s counsel informed defendant that, since plaintiff was
no longer employed by defendant, he would have difficulty reviewing his personnel file at defendant’s
place of business. Counsel, however, did not elaborate on the nature of the difficulty. In response,
defendant once again invited plaintiff to review the file at defendant’s office. Plaintiff declined and
commenced this action for failure to comply with the Bullard-Plawecki Act’s requirement that an
employer mail a copy of an employee’s personnel record to an employee who demonstrates an inability
to review it at the “employing unit.” MCL 423.504; MSA 17.62(4).
Defendant subsequently moved for summary disposition under MCR 2.116(C)(8) and MCR
2.116(C)(10) on the grounds that plaintiff’s complaint failed to state a claim upon which relief could be
granted and there was no genuine issue of fact whether defendant had a duty to mail a copy of plaintiff’s
personnel file to him. The trial court granted the motion under the MCR 2.116(C)(8), reasoning as
In this case, the correspondence between the parties reveals that Defendant
invited Plaintiff to review the file at their office. Plaintiff’s attorney responded that
Plaintiff had obtained other employment and “finds it difficult to go to your premises to
review his personnel file.” However, Plaintiff has failed to demonstrate to this court “an
inability to review the file” at Defendant’s place of business. The fact that he has
another job, without any further explanation, does not reveal how or why he is unable to
review his file at Defendant’s place of business.
Furthermore, there is not any evidence that Defendant wilfully or intentionally
violated the act. Since Plaintiff has failed to demonstrate a violation of the BullardPlawecki Employee Right to Know Act, summary disposition should be granted.
Plaintiff argues that the trial court erred in granting summary disposition under MCR
2.116(C)(8), because he stated a valid cause of action. This Court reviews de novo an order granting
summary disposition. Butler v Ramco-Gershenson, Inc, 214 Mich App 521, 524; 542 NW2d 912
(1995). Because the trial court looked beyond the pleadings, we will review the court’s decision under
the appropriate subrule, MCR 2.116(C)(10). A motion for summary disposition under MCR
2.116(C)(10) tests the factual basis underlying a plaintiff’s claim and permits summary disposition when,
except for the amount of damages, no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Gibson v Neelis, 227 Mich App 187, 190; 575 NW2d 313
(1997). When deciding the motion, the court considers the affidavits, pleadings, depositions,
admissions, and other documentary evidence in a light most favorable to the opposing party. Id.
Plaintiff contends that the trial court erred in granting summary disposition because, as a former
employee, there was no longer an “employing unit” at which he could review his file. We reject this
contention as unreasonable on its face. In interpreting a statute, our primary goal is to ascertain and give
effect to the legislative intent. Frankenmuth Mut Ins Co v Marlett Homes, Inc, 456 Mich 511, 515;
573 NW2d 611 (1998). This Court first considers the specific language of a statute to determine the
intent of the Legislature. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d
539 (1993). Judicial construction is not permitted where the plain and ordinary meaning of the language
is clear. Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992).
MCL 423.504; MSA 17.62(4) provides in relevant part:
If an employee demonstrates that he or she is unable to review his or her
personnel record at the employing unit, then the employer, upon that employee’s written
request, shall mail a copy of the requested record to the employee.
Although the statute does not define the phrase “employing unit,” the term “employee” is defined as a
person currently or formerly employed by an employer. MCL 423.501(2)(a); MSA 17.62(1)(2)(a).
Thus, the termination of the employment relationship does not alter the plaintiff’s status as an employee
for the purposes of the act, and, consistently, the employing unit remains the place of (former)
employment. Because the statute applies to both current and former employees, a former employee is
required to view his file at the employing unit unless he demonstrates an inability to do so. MCL
423.504; MSA 17.62(4).
Plaintiff next contends that, by informing defendant of his other employment, he sufficiently
demonstrated his inability to review his file at the employing unit. We reject this contention because
although the act grants an employee the right to view his file, it clearly places the burden on him to
arrange the review. The fact that plaintiff has obtained other employment does not, by itself,
demonstrate the necessary inability. Further, in the event that a former employee’s new employment
presents a mere inconvenience to him, the employer is not necessarily required to copy the file, but,
rather, may offer another reasonable place and time for the review. MCL 423.503; MSA 17.62(3).
Accordingly, we conclude that the trial court properly granted summary disposition because plaintiff
failed to raise a genuine issue of material fact concerning his inability to review his file at defendant’s
/s/ Maura D. Corrigan
/s/ Joel P. Hoekstra
/s/ Robert P. Young, Jr.