BETTY LYND V ADAPT INCAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
November 13, 1998
ADAPT INC., DOUG CARR, DON CROSS, and
Branch Circuit Court
LC No. 90-050319 CZ
Before: Smolenski, P.J., McDonald and Saad, JJ.
In this action for retaliatory discharge from employment filed under the Whistleblowers’
Protection Act (WPA), MCL 15.361 et seq.; MSA 17.428(1) et seq., plaintiff appeals as of right from
the trial court’s judgment granting defendants’ motion for a directed verdict.1 Plaintiff also challenges
evidentiary rulings made during trial. We reverse and remand.
Plaintiff argues that the lower court improperly granted defendants’ motion for a directed verdict
at the close of plaintiff’s case. This Court reviews de novo the grant of a directed verdict. Meagher v
Wayne State University, 222 Mich App 700, 707; 565 NW2d 401 (1997). We review all the
evidence presented up to the time of the motion to determine whether a question of fact existed.
Hatfield v St Mary's Medical Center, 211 Mich App 321, 325; 535 NW2d 272 (1995). In so
doing, we view the evidence in the light most favorable to the nonmoving party, granting plaintiff every
reasonable inference and resolving any conflict in the evidence in her favor. Id. If reasonable jurors
could honestly have reached different conclusions, then neither the trial court nor this Court may
substitute its judgment for that of the jury. Hunt v Freeman, 217 Mich App 92, 99; 550 NW2d 817
(1996). The grant of a directed verdict is appropriate only when no factual question exists upon which
reasonable minds could differ. Allen v Owens-Corning, 225 Mich App 397, 406; 571 NW2d 530
The WPA protects an employee who “reports or is about to report, verbally or in writing, a
violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of
this state, a political subdivision of this state, or the United States to a public body”. MCL 15.362;
MSA 17.428(2). To establish a prima facie case under § 2 of the WPA, a plaintiff must show that (1)
she was engaged in protected activity as defined by the act, (2) the defendant discharged her, 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). Here, the element in dispute at trial
was the causal connection between plaintiff’s planned report to the Department of Social Services
(DSS) and her discharge from employment at Adapt, a corporation licensed to operate alternative
intermediate services for the mentally retarded.
After viewing the evidence in a light most favorable to plaintiff, Hatfield, supra at 325, we must
conclude that a question of fact existed regarding the causal connection between plaintiff’s discharge
and her protected activity. A causal connection can reasonably be inferred from two facts: first, the
fact that plaintiff complained to defendants about the incidents of abuse or neglect without any effect
apparent to her or her coworkers; and second, the fact that plaintiff was fired the day after her
supervisor received notice that she was going to file a complaint with the DSS. Plaintiff has the right to
ask the jury to believe the case presented to it, however improbable it might seem. Hunt, supra 99.
Therefore, we reverse the lower court’s judgment for defendants and remand the case for trial of the
We are not persuaded by defendants’ arguments. Defendants argue that no reasonable juror
could have found that plaintiff’s protected activity motivated the decision to terminate her employment,
because it was Adapt’s policy to report suspected abuse or neglect to the DSS. However, plaintiff and
her co-worker, Zegarski, testified that in practice, defendants permitted home supervisors to decide
whether a report of abuse or neglect should be forwarded to the DSS or handled “in house.”
Additionally, plaintiff and her co-worker, Garman, testified that they made oral and written reports
without seeing any visible change in procedures or staffing (although Garman assumed that defendant
Carr had taken care of the problem she reported). Defendants also rely upon a DSS investigator’s
statement that plaintiff’s complaints were the first DSS received about Adapt. Nevertheless, plaintiff still
presented sufficient evidence to create a question of fact.
Defendants also argue that a reasonable juror would have found that plaintiff was discharged
because of her poor performance as an employee, specifically, her failure to get along with staff, her
harassment of a resident’s mother, and her refusal to accept direction from supervisors. However, there
was sufficient evidence to establish a question of fact regarding whether these reasons were pretextual.
Because this Court is required to grant plaintiff every reasonable inference and resolve any conflict in the
evidence in her favor, Hatfield, supra at 325, we must conclude that this was a jury triable fact issue.
Defendants also argue that plaintiff filed the DSS report to “punish” defendants, rather than out
of genuine concern for the home’s clients. However, plaintiff’s motivation is not legally relevant. See
Phinney v Perlmutter, 222 Mich App 513, 554; 564 NW2d 532 (1997) (reporting of misconduct in
an agency receiving public money is always in the public interest, even where plaintiff was motivated by
personal gain rather than the public good).
Under the applicable standard of review for directed verdicts, defendant was not entitled to
judgment as a matter of law. Accordingly, we reverse and remand for a new trial. 2
Plaintiff also raises two evidentiary issues, pertaining to the trial court’s limitation of evidence of
prior incidents of abuse and pertaining to her attempt to use the MESC transcript as substantive
evidence. Because we have already determined that plaintiff is entitled to a new trial, we need not
address these issues. Furthermore, plaintiff has not cited any authority in support of her evidentiary
arguments, other than a conclusory and irrelevant statement that the MERC transcript is not hearsay
within the definition of MRE 801(d)(2).3 Plaintiff’s failure to cite any legal authority in her discussion of
this issue can be construed as abandonment of this issue for review. Speaker-Hines & Thomas, Inc v
Dep’t of Treasury, 207 Mich App 84, 90-91; 523 NW2d 826 (1994).
Finally, plaintiff claims that the lower court judge should be disqualified because he is prejudiced
against plaintiff and plaintiff’s counsel. To preserve a judicial disqualification issue for appellate review,
the plaintiff must first move for disqualification in the trial court, and then, if the trial court judge denies
the party’s motion, request referral to the chief judge or state administrator. MCR 2.003(C)(3); Welch
v District Court, 215 Mich App 253, 258; 545 NW2d 15 (1996). Here, plaintiff has not complied
with these procedures. Accordingly, this issue is not preserved.
Furthermore, we see no grounds for disqualification. Plaintiff claims judicial bias, MCR
2.003(B)(1). To disqualify a judge on the basis of bias, a showing of both actual and personal
prejudice is required. Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996).
The challenged bias “must have its origin in events or sources of information gleaned outside the judicial
proceeding.” Id. at 495-496. A judge’s opinions, formed on the basis of facts or events occurring in
the proceeding will not serve as a basis for disqualification “unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible.” Id., 496 (quoting Liteky v United States,
510 US 540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994) (emphasis omitted). The party asserting
partiality has a heavy burden of overcoming a presumption of impartiality. Id., 497.
Plaintiff alleges that the trial judge’s wife, an attorney, has represented Adapt, Inc. However,
plaintiff has failed to substantiate this allegation, other than her own statement that she “has known for
some time” about the legal relationship. We consider this issue abandoned for insufficient briefing.
Dresden v Detroit Macomb Hospital, 218 Mich App 292, 300; 553 NW2d 387 (1996). Plaintiff
also contends that the trial court’s adverse rulings and comments about the prolonged litigation
demonstrated prejudice. However, a trial judge’s comment that a claim is frivolous does not establish
disqualifying bias. Ferrell v Vic Tanny International, Inc, 137 Mich App 238, 248; 357 NW2d 669
(1984). Furthermore, repeated rulings against a litigant, even if
the rulings are erroneous, do not establish disqualification. Wayne Co Prosecutor v Parole Bd, 210
Mich App 148, 155; 532 NW2d 899 (1995). We therefore reject plaintiff’s request for
Reversed and remanded. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Gary R. McDonald
/s/ Henry William Saad
This appeal is the third occasion that plaintiff’s case has come before this court. Lynd v Adapt, Inc,
unpublished opinion per curiam of the Court of Appeals, decided August 6, 1996 (Docket No.
178294); 200 Mich App 305; 503 NW2d 766 (1993).
We treat plaintiff’s civil conspiracy argument as merely an effort to hold the individual defendants liable
under the WPA. Plaintiff’s complaint is, in substance, a one-count complaint filed under the WPA. The
WPA provides exclusive relief to a plaintiff reporting her employer’s illegal activity. See, e.g.,
Dudewicz v Norris Scmid, Inc, 443 Mich 68, 78-80; 503 NW2d 645 (1993), which held that a
plaintiff could not sustain a public policy claim against her employer because the WPA was the exclusive
remedy for the alleged wrong.
Plaintiff’s cursory reference to the hearsay rules is irrelevant because it fails to address MCL
421.11(b)(1); MSA 17.511(b)(1), which provides for confidentiality of information obtained in MESC