DAVID HOLUBOWICZ V JACKSON COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
DAVID HOLUBOWICZ,
UNPUBLISHED
December 21, 2006
Plaintiff-Appellant,
v
No. 270992
Jackson Circuit Court
LC No. 05-004698-CD
JACKSON COUNTY,
Defendant-Appellee.
Before: Servitto, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
In this case alleging wrongful discharge under the Whistleblowers’ Protection Act
(WPA), MCL 15.361 et seq., plaintiff appeals as of right the trial court’s order granting summary
disposition pursuant to MCR 2.116(C)(10) in favor of defendant. We affirm.
Plaintiff was employed by defendant as the assistant facilities manager and reported to
facilities manager Jerry Bethel. Beginning in 2003, the county commenced a renovation product
to transform its old medical care facility building into a new county Human Services Building
(HSB). Bethel bore responsibility for the project, but both he and plaintiff were in charge of
overseeing the project. Employees of the maintenance department were required to perform
some of the work on the building, particularly in relation to demolition. To assist them, the
county utilized the services of some trustees from the jail and persons assigned to perform
community service.
According to Bethel, because there was no water at the job site and in an effort to make
the project run smoothly, he directed maintenance employee Jim Nichols to sell the scrap
material retrieved from the demolition project and use the proceeds to buy such items as water,
coffee, and food for the workers. Employee Dennis Spitler apparently assisted Nichols at times.
Plaintiff, who supervised both Nichols and Spitler, was present when Bethel gave this direction.
When Bethel announced he would retire effective June 18, 2004, plaintiff applied for the
position. Although plaintiff had the support of several Jackson County commissioners, judges,
and department heads, county administrator Taraskiewicz chose an outside candidate, Dave
Comiskey, for the position. On June 30, 2004, plaintiff entered the county’s Deferred
Retirement Option Plan (DROP). Under the program, he was permitted to continue active
employment with the county for three years – until June 30, 2007. On July 6, 2004,
Taraskiewicz orally warned plaintiff that certain of plaintiff’s actions were “inappropriate and
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bordering on insubordination.” In a July 9, 2004, letter to plaintiff regarding the oral warning,
Taraskiewicz noted that plaintiff had indicated that he could not give Taraskiewicz 100% support
with regard to the decision to hire Comiskey. Taraskiewicz advised plaintiff to “decide whether
you are going to be supportive of the new Facilities Director or whether you should be returning
to the County.” Comiskey commenced employment on July 19, 2004.
Sometime thereafter, plaintiff suspected that Comiskey did not have a driver’s license.
Believing that a driver’s license was a requirement for the position of facilities manager, plaintiff
reported his suspicions to three county commissioners. According to plaintiff, within days of
reporting his suspicions to the commissioners, Comiskey placed him on a Performance
Improvement Plan (PIP) due to “accountability and productivity concerns.” In a letter to
plaintiff dated September 17, 2004, Comiskey stated:
Today I met with you . . . to review your progress with the performance
improvement plan issued to you on August 12, 2004. I am encouraged by the
change I have observed so far. You appear to be meeting the intent of the plan
and you have made positive effort in working toward running the department as a
team.
Although your progress has been positive, I am extending the performance
improvement plan for another 30 days. During the next 30 days you are to
continue to follow the provisions in the original performance improvement plan
dated August 12, 2004, with the following modification:
•
You are to provide me with your written time detail report every Friday.
If you continue on the same path I have seen in the past month, and assuming no
other issue arises regarding job performance, I anticipate that we will end the
performance plan at that time.
We will meet again on or about October 18th to evaluate your job performance
under this plan.
The PIP was terminated on October 18, 2004.
According to plaintiff, in late October 2004, facilities employee Tim Yost informed
plaintiff that a natural gas regulator was removed from the high pressure gas line leading to the
incinerator at the Jackson County animal shelter and that nobody should light the pilot lights.
Plaintiff arranged to have the gas shut off. Comiskey became upset when plaintiff explained the
situation to him the following day. In early November 2004 plaintiff told three or four county
commissioners that Comiskey approved the illegal removal of the natural gas regulator.1
1
Plaintiff also reported the incident on January 27, 2005, to the new county administrator,
Robert Elliott, and on February 7, 2005, provided a memorandum detailing the incident.
Comiskey also provided a report of the incident to Elliott indicating that the removal of the
(continued…)
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In late 2004, maintenance employee Porras was assigned to work at the HSB. He
complained to his supervisor about the sale of the scrap and the use of the proceeds to purchase
food and beverages. The Michigan State Police conducted an investigation that resulted in a
January 2005 report that revealed that the sale of the scrap had netted over $10,000, all of which
was paid in cash or by check to Jim Nichols. None of the money had been turned over to the
county treasurer. The county human resources department also conducted an investigation,
which included interviews with several witnesses. Ultimately, the department decided to
terminate the employment of both Nichols and Spitler for their roles in the sale of the scrap.2
On January 27, 2005, Comiskey demoted plaintiff from assistant facilities manager to
plumber. According to plaintiff, during the meeting Comiskey repeatedly put his face near
plaintiff’s face, pounded his fists on the table, and smacked his fist into his other hand while
screaming, cussing, and making threatening statements. Plaintiff called 911 during the
altercation. A police officer from the Jackson Police Department took statements from both
plaintiff and Comiskey, and plaintiff later filed a complaint against Comiskey.
(…continued)
regulator did not present a safety concern.
2
Both Spitler and Nichols grieved the discharges through their union. Labor Arbitrator Brodsky
ruled that there was a legitimate just cause basis for imposing discipline in the case of Spitler and
Nichols. She held that their sale of scrap and purchase of coffeemakers, water dispensers, and
food and beverages violated county work rules and County Policy # 5160. She opined that
Spitler and Nichols could not lay the blame on Bethel:
Like Mr. Porras, the grievants should have inherently known that the system was
corrupt. The grievants cannot lay the blame at Mr. Bethel’s feet an have their
behavior excused on the basis that they simply followed his orders. It is easy at
this point to make Mr. Bethel the “fall” guy since he is safely ensconced in
retirement. The grievants are imputed with the knowledge that Bethel was not
high enough in the County hierarchy to authorize the use of County monies for a
separate substantial HSB “keep the job going” fund. Furthermore, scrap was
cashed in for a considerable amount of time after Bethel retired and who was
allegedly authorizing the operation then?
Thus the entire operation, despite its apparent overtness, was wrong. . . . It is
undeniably a form of conversion and the grievants and other HSB project workers
benefited from the operation’s ill-gotten gains. The Union witnesses agreed that
it would be wrong to pass out $10 bills to keep the job going, but it is certainly
easier to rationalize rewarding the workers with Dove Bars and pistachios for a
hard day’s work. In sum, regardless of the grievants’ alleged lack of familiary
with Policy #5160, they failed to take proper care of the Employer’s scrap in
violation of Rule #6 [“Employees shall take proper care and use of the County’s
property and other employee’s property.”]. Moreover, although what was
accomplished may or may not fit a strict definition of stealing, the conversion of
scrap proceeds to purchase goods consumed by HSB workers is a violation of at
least the spirit of Rule #12 [“Employees shall not steal or attempt to steal.”]
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On February 1, 2005, Comiskey suspended plaintiff from February 2 – 10, 2005, without
pay for “insubordination and workplace violence.” The letter to plaintiff identified plaintiff’s
instances of misconduct, and also stated:
You have also been advised that the County is investigating allegations
that you have threatened and intimidated other employees3 and the State Police
and County are investigating allegations of improper disposition of salvage from
the Human Services Building and other projects. The County reserves the right to
impose additional discipline up to and including discharge based on the outcome
of those investigations.
You are directed to attend a disciplinary hearing on February 10, 2005 at
10:00 AM regarding those matters. [Emphasis supplied.]
On February 8, 2005, plaintiff filed a complaint against Comiskey under the Jackson
County workplace violence policy.4 New administrator Elliott delegated to deputy county
administrator Treacher the duty to determine if plaintiff should be disciplined for his role in the
sale of scrap.
A disciplinary hearing was held on February 22, 2005. At that meeting, plaintiff
requested an adjournment to give him time to decide whether to provide the county with tapes
and transcripts of certain recorded conversations between himself and Comiskey.5 In a
3
According to plaintiff, Comiskey solicited complaints from plaintiff’s subordinates, whom
plaintiff described as “resentful” toward plaintiff because plaintiff insisted that they do their jobs.
4
On March 3, 2005, interim human resources director Joni Johnson informed plaintiff by written
memorandum:
On February 8, 2005, you filed a workplace violence incident report for an
incident that occurred on January 31, 2005 between you and Dave Comiskey,
Facilities Manager. The investigation into this incident is now complete.
It has been found that the evidence indicates that you were threatened by Dave
Comiskey and therefore a violation of the County’s Workplace Violence Policy
did occur. In addition, the evidence also indicated that you also were in violation
of the Workplace Violence Policy with your aggressive behavior and you could
have avoided any further confrontation by leaving the building when you were
directed to do so.
Appropriate disciplinary action will be taken with Mr. Comiskey.
5
Apparently as a result of Elliott’s review of the tape recordings between plaintiff and
Comiskey, as well as other information, on March 7, 2005, he recommended the termination of
Comiskey’s employment. The Board of Commissioners apparently adopted the recommendation
soon thereafter.
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memorandum to plaintiff dated March 4, 2005 (subsequent to review of the tapes and
transcripts), deputy administrator Treacher stated in relevant part:
After reviewing all of the relevant information in this matter, including the
State Police Report, I have concluded that your employment should be terminated
effective immediately.
Although you are an employee-at-will who is subject to termination with
or without cause at any time, there is more than adequate cause for your
termination. The reasons include the following:
1. The County’s investigation and the investigation conducted by
the State Police have confirmed that you were well aware that scrap and other
items of considerable value from the Human Services Building were sold to
OMNISource and that the proceeds were not turned over to the County. Proceeds
from the sale of those items since June 30, 2003 were in excess of $10,000.00. A
portion of the proceeds was used to purchase food and beverages for employees
and others at the Human Services Building.
Upon questioning, you also stated that you were aware that Larry’s
Hauling was removing a large amount of material from the Human Services
Building.
Such sales of County property violate Work Rule No. 6 which requires
that employees take proper care and use of County Property.
Such sales and disposition of County property also violate County Policy
No. 5160. The Policy provides that excess County property may only be sold at
the discretion of the Facilities Manager and the Administrator/Controller. It is
also evident that you were aware of this Policy as you not only purchased excess
property in (at least) 2003 but also signed several of the disposition forms.
Moreover, at no time after Mr. Comiskey became the Facilities Manager
in July, 2004, did you advise him or me of such sales or the existence of the food
and beverage fund at the Human Services Building.
2. Your actions have caused your relationship with Mr. Comiskey and
other Department employees to deteriorate to the point that they can no longer
work effectively with you. Complaints have been received from other employees
in the department, including Dave Porras, Lee Dempsey, and Tim Yost, about
your threatening and intimidating conduct towards them.
Plaintiff filed a complaint against defendant under the WPA on May 12, 2005. In Count I
he alleged that he was discharged for speaking with county commissioners regarding his
suspicion that Comiskey did not have a driver’s license. He also alleged that he was discharged
because he told commissioners in November 2004 about Comiskey approving the removal of the
natural gas regulator at the animal shelter. In Count II plaintiff alleged that defendant discharged
him because he filed a complaint with the Human Resources Department claiming that he had
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been the victim of workplace violence by Comiskey on January 31, 2005. In Count III plaintiff
alleged that he was discharged for making a complaint on January 31, 2005, to a Jackson city
police officer about the alleged assault by Comiskey.
Defendant filed a motion for summary disposition under MCR 2.116(C)(10), contending
that plaintiff failed to create a question of fact with regard to whether defendant had retaliatory
animus toward plaintiff based upon his protected activity that motivated the discharge.
Specifically, with regard to Count II, defendant argued that plaintiff’s report to the human
resources department did not constitute protected activity because the report was to plaintiff’s
employer, rather than a separate public body. With regard to the entire complaint, defendant
argued that plaintiff failed to establish a causal nexus between what he allegedly reported and his
discharge. Defendant also argued that it established a legitimate reason for the discharge and
that plaintiff failed to demonstrate that the reason given by defendant was simply a pretext.
Plaintiff filed a cross-motion for summary disposition, arguing that defendant failed to establish
a material issue of fact with respect to plaintiff’s showing of pretext.
Following a hearing, the trial court granted summary disposition in favor of defendant:
It is a (C)(10) motion. The reason for the discharge that’s proferred is that
the employees sold scrap without authority and without turning over the funds to
the county, and we’re talking about proceeds in excess of $10,000.00, kept no
records of it, had no authority to do it. And I think that’s - - the records show all
that is correct, and also that the Plaintiff knew about this at the time he was there,
he knew it violated county policy, and he didn’t do anything about it. The
employees that did this were fired. I think that this is a legitimate reason for the
plaintiff’s discharge. I don’t think that there’s a pretext. I don’t’ think he’s been
singled out. His supervisor was fired two or three days later. . . .
Plaintiff argues that the trial court erroneously determined that there was no genuine issue
of material fact that defendant’s articulated reason for termination was legitimate and nonretaliatory because defendant admitted that its articulated reason was not the real reason for
plaintiff’s termination. This Court reviews a trial court’s decision on a motion for summary
disposition de novo as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593
NW2d 215 (1999).
Plaintiff's whistleblower claim was brought under MCL 15.362, which states:
An employer shall not discharge, threaten, or otherwise discriminate against an
employee regarding the employee's compensation, terms, conditions, location, or
privileges of employment because the employee, or a person acting on behalf of
the employee, 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, unless the employee knows that the report is false, or because an employee
is requested by a public body to participate in an investigation, hearing, or inquiry
held by that public body, or a court action.
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The elements necessary to establish a prima facie case of a WPA violation are: (1) that
plaintiff was engaged in protected activities as defined by the act; (2) that plaintiff was
subsequently discharged, threatened, or otherwise discriminated against; and (3) that a causal
connection existed between the protected activity and the discharge, threat, or discrimination.
Heckmann v Detroit Chief of Police, 267 Mich App 480, 491; 705 NW2d 689 (2005). The trial
court did not address the issue of whether plaintiff established a prima facie case. Rather, the
court based its running on the ground that there was no genuine issue of material fact that
defendant presented a legitimate, non-discriminatory reason for the discharge and that plaintiff
presented insufficient evidence to establish a genuine issue of material fact with regard to
whether defendant’s purported reason for terminating plaintiff was a pretext.
When considering claims under the WPA, this Court applies the burden-shifting analysis
used in retaliatory discharge claims under the Civil Rights Act, MCL 37.2101 et seq.; Roulston v
Tendercare (Michigan), Inc, 239 Mich App 270, 280-281, 608 NW2d 525 (2000). If the plaintiff
has successfully proved a prima facie case under the WPA, the burden shifts to the defendant to
articulate a legitimate business reason for the plaintiff's discharge. Id. If the defendant produces
evidence establishing the existence of a legitimate reason for the discharge, the plaintiff then has
the opportunity to prove that the legitimate reason offered by the defendant was not the true
reason, but was only a pretext for the discharge. Id.
Here, defendant offered evidence that it discharged plaintiff because of his knowledge
that the scrap was being sold and that the proceeds were being kept for use by the employees
rather than being turned over to the county treasurer. This evidence satisfies defendant's burden.
Plaintiff argues that this was not the true reason for his discharge and is merely a pretext.
In order for plaintiff's claim to survive the motion for summary disposition, plaintiff must
"demonstrate that the evidence in the case ... is 'sufficient to permit a reasonable trier of fact to
conclude that [plaintiff's protected activity] was a motivating factor in the adverse action taken
by the employer....' " Hazle v Ford Motor Co, 464 Mich 456, 465, 628 NW2d 515 (2001),
quoting Lytle v Malady (On Rehearing), 458 Mich 153, 176; 579 NW2d 906 (1998). In other
words, a plaintiff must " 'raise a triable issue that the employer's proffered reason ... was a pretext
for [retaliating against plaintiff's protected activity].' " Hazle, supra at 465-466. "A plaintiff can
prove pretext either directly by persuading the court that a retaliatory reason more likely
motivated the employer or indirectly by showing that the employer's proffered explanation is
unworthy of credence." Roulston, supra at 281, citing Hopkins v Midland, 158 Mich App 361,
380; 404 NW2d 744 (1987).
Plaintiff raises several arguments in support of his contention that defendant’s proferred
reason for discharging plaintiff was pretexual. Plaintiff first argues that Treacher’s testimony
eliminates any question of fact regarding pretext. Specifically, plaintiff contends that Treacher
conceded that the reason given in the termination letter – particularly the violation of Work Rule
No. 6 and County Policy No. 5160 -– was not the true reason for discharge. Plaintiff’s
contention is based on the following excerpt of Treacher’s deposition testimony:
Q: (Plaintiff’s attorney): Well, then why is it that the county decided to
fire Dave Holubowicz?
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A. There were, I believe, reasons given in the termination letter, but those
are not the true reasons he was fired. That is, we don’t bear the burden of
proof on those areas because he was an at-will - the position’s an at-will
position.
When read in context, Treacher’s comment does not support plaintiff’s argument that Treacher
denied that plaintiff was terminated because he allowed the unapproved sale of the scrap.
Rather, Treacher’s use of the phrase “that is,” suggests that he is explaining what he meant by his
previous comment. In other words, although there were reasons given for the termination,
defendant did not have to provide a reason for the termination because plaintiff was an at-will
employee. Additionally, Treacher also testified:
Q. (Plaintiff’s attorney): Your problem from a county standpoint is that
Mr. Holubowicz was aware of it [scrap sales]. Is that where you’re coming from?
A. Yes.
Q. Okay. And you’ve never lumped Mr. Holubowicz in with Mr. Spitler
or Mr. Nichols, is that correct, in terms of responsibility for this scrap violation
policy?
A. Well, no. I don’t know if I’m answering your question exactly. Do I
lump him in with them? I believe that he and Jerry Bethel were as guilty, yes.
Probably more guilty.
Treacher’s comments, read in context, do not support plaintiff’s argument that Treacher
conceded that the articulated reason for termination was false.
Plaintiff also argues that Bethel had discretion under County Policy No. 5160 to sell
excess county property and that he was not obligated to second-guess Bethel’s exercise of
discretion. However, a review of the record reveals that plaintiff was aware that a procedure
existed for the approval of the sale of county property and that the procedure was not complied
with in regard to the sale of the scrap.6
Plaintiff further argues that defendant began soliciting complaints against plaintiff in
December 2004 after plaintiff reported the incident at the animal shelter. He argues that “they
show that defendant was attempting to build a case to fire plaintiff and, hence, are evidence of
pretext.” However, a review of the record reveals no evidence that defendant began an
investigation against plaintiff in retaliation for having engaged in a protected activity. Rather,
Porras made a complaint regarding the sale of scrap to his supervisor and the complaint led to an
6
Plaintiff also argues that “Treacher’s disapproval of plaintiff’s reporting [of the incident at the
animal shelter] also establishes pretext.” We are unable to determine what, precisely, plaintiff is
attempting to argue. Nonetheless, there is nothing in the record to indicate that plaintiff was
prevented from filing any reports.
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investigation by the human resources department and the Michigan State Police. The human
resources department interviewed employees who worked on the HSB project. After the
investigation was completed, one employee (Nichols) was discharged and one employee (Spitler)
was recommended for discharge but was eventually given a 13-month suspension. Contrary to
plaintiff’s suggestion, the evidence shows that the investigation was not aimed at plaintiff but,
rather, at the practice of selling scrap from the HSB project and keeping the proceeds for use at
the job site.
Lastly, plaintiff contends that he bore no responsibility for the sale of the scrap and was
not involved in the practice. He contends that Bethel is solely responsible for the decision to sell
the scrap and use the funds for food and beverages. However, as stated above, plaintiff was one
of two people involved in “overseeing the complete remodeling project of the Human Services
building” (plaintiff’s words) and was aware that the county had procedures in place for the sale
of county property. Plaintiff was familiar with County Policy No. 5160 and should have
inherently known that use of the proceeds from the sale of scrap to purchase food and beverages
for workers violated county policy.
Defendant cited a legitimate non-retaliatory reason for plaintiff’s termination and plaintiff
failed to present substantive evidence showing that defendant’s reasons for terminating plaintiff
were either untrue or a pretext for the adverse employment action. We therefore affirm the order
granting summary disposition in favor of defendant.7
Affirmed.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
7
In light of our decision, we find it unnecessary to address defendants' alternative grounds for
affirmance of the trial court's grant of summary disposition.
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