CARRIE LYNN COLEMAN V CLUB OF KALAMAZOO INC
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STATE OF MICHIGAN
COURT OF APPEALS
CARRIE LYNN COLEMAN, JASON STUART
WITHERSPOON, MEREDITH JEAN
WAYBRANT, and BETH ELLEN BROWNING,
UNPUBLISHED
January 15, 2009
Plaintiffs-Appellees,
v
CLUB OF KALAMAZOO, INC., RIVERSIDE,
KAREN RAE BAKER, and CANDICE
BRAUSCH,
No. 280230
Kalamazoo Circuit Court
LC No. 04-000665-CZ
Defendants-Appellants.
Before: Zahra, P.J., and O’Connell and Fort Hood, JJ.
PER CURIAM.
Defendants appeal as of right from the trial court’s orders denying their motion for a
directed verdict and awarding attorney fees to plaintiffs. We affirm. This appeal has been
decided without oral argument pursuant to MCR 7.214(E).
Plaintiffs worked in defendants’ health club, which was being remodeled but was still
open to members. Plaintiffs’ various duties included greeting members, maintaining the
cleanliness and proper presentation of the facility, performing customer service duties,
maintaining the equipment and pool, giving tours, and describing the club’s remodeling plans to
members.
Defendants claim that the trial court erred when it failed to grant defendants’ motion for a
directed verdict at the close of proofs during the jury trial. First, defendants argue that two of the
plaintiffs, Meredith Waybrant and Jason Witherspoon, are not entitled to protection under the
Michigan Whistleblowers’ Protection Act (MWPA), MCL 15.361 et seq., because they did not
make any calls or complaints to the Michigan Occupational Safety and Health Administration
(MIOSHA) regarding defendants’ request that plaintiffs install insulation in various areas of the
health club. Defendants assert that only plaintiffs Carrie Coleman and Beth Browning called
MIOSHA regarding defendants’ request to install the insulation, and these calls were not made
on behalf of Waybrant and Witherspoon within the meaning of the MWPA. Defendants further
assert there was no causal connection between Waybrant’s and Witherspoon’s discharges from
employment and the phone calls that were made to MIOSHA. We disagree. We review de novo
a trial court’s denial of a motion for directed verdict. Sniecinski v Blue Cross & Blue Shield of
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Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). In so doing, we review all evidence and
all legitimate inferences in the light most favorable to the nonmoving party. Id. Only if the
evidence, when viewed in this light, fails to establish a claim as a matter of law should a motion
for a directed verdict be granted. Id.
MCL 15.362 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.
The MWPA is a remedial statute that is to be liberally construed in favor of the persons it is
intended to benefit. Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566
NW2d 571 (1997). A plaintiff must establish the following three elements to make a prima facie
case under the MWPA: “(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). “A person is engaged in ‘protected activity’ under the [MWPA] where the person
(1) reports a violation or suspected violation of a law or regulation to a public body, (2) is about
to report such a violation to a public body, or (3) is asked by a public body to participate in an
investigation.” Trepanier v Nat’l Amusements, Inc, 250 Mich App 578, 583; 649 NW2d 754
(2002).
Defendants claim that Waybrant and Witherspoon did not engage in any protected
activity and that the statutory language of the MWPA shows that a person must specifically seek
out an employee’s permission to act on his or her behalf in order for that employee to receive
protection under the MWPA. However, we conclude that the plain language of the MWPA does
not impose such requirements.
The cardinal rule of all statutory construction is to identify and give effect to the
intent of the Legislature. The first step in discerning intent is to examine the
language of the statute in question. We read the language according to its
ordinary and generally accepted meaning. Judicial construction is authorized only
where it lends itself to more than one interpretation. [Shallal, supra at 611
(internal citations omitted).]
The clear and unambiguous statutory language of the MWPA prohibits an employer from
making an adverse employment action against an employee because that employee, or a person
“acting on behalf of” that employee, reports a wrongdoing. The statutory language does not state
that the person acting on behalf of the employee must get that employee’s permission or
authorization before making the report on that employee’s behalf. If the Legislature had
intended that someone acting on behalf of an employee must receive that employee’s consent
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before reporting a wrongdoing in order for that employee to receive protection under the
MWPA, it would have written this requirement into the statute. Given that the MWPA is to be
liberally construed in favor of the persons it is intended to benefit, it should not be interpreted in
a way that creates a limitation that is not apparent in the unambiguous language of the statute.
During the final staff meeting, Coleman admitted to defendants that she had called
MIOSHA for the benefit of everyone. Also, Browning testified that she decided to call
MIOSHA after a general discussion with plaintiffs about how they could obtain the information
necessary to make certain they were safe. Thus, Coleman and Browning called MIOSHA on
behalf of themselves and their coworkers, as evidenced by their concerns for the safety of
everyone asked to install the insulation. Moreover, Waybrant and Witherspoon took part in the
protected activity even though they did not directly dial MIOSHA and speak to someone.
Waybrant shared with Browning and Coleman her concerns that she was not given the proper
protective gear for installing the insulation, knowing that they also had concerns regarding safety
and were planning to call MIOSHA. Waybrant also believed that she took part in the complaints
made to MIOSHA. Witherspoon discussed his concerns regarding the insulation during a
meeting with the other plaintiffs and believed that they collectively decided to call MIOSHA.
Further, there is a causal connection between the protected activities and the adverse
employment actions taken against all plaintiffs, including Waybrant and Witherspoon. At some
point both Waybrant and Witherspoon told defendants about their concerns regarding installing
the insulation. After defendants learned that both Browning and Coleman had called MIOSHA,
they stopped giving all plaintiffs the option of acquiring the necessary protective gear and
installing the insulation. Instead, they forced plaintiffs to take a reduction in their hourly wages
in order to pay someone else to do it. Soon thereafter, defendants discharged each of the
plaintiffs. Although defendants claim that plaintiffs were discharged because the club was
having monetary problems and they wanted to focus on construction rather than new
memberships, defendants hired new employees immediately and posted a sign the same week
announcing that the club was signing up new members. Also, defendants had recently trained
plaintiffs to use new software for the club and had given plaintiffs the codes for the club’s new
security system. Defendants did not indicate to plaintiffs that they would be discharged from
their positions until after Browning and Coleman made the phone calls to MIOSHA. Thus, there
was a causal connection between the phone calls that Browning and Coleman made to MIOSHA
and plaintiffs’ reduction in pay and subsequent discharges.
Next, defendants claim that a directed verdict was warranted because plaintiffs’ phone
calls to MIOSHA did not qualify as “reports of a violation or a suspected violation” of a law or a
regulation of a public body within the meaning of the MWPA. Instead, they claim that plaintiffs
were motivated by bad faith rather than by a desire to protect the public’s interest. We disagree.
Defendants allege that neither Coleman nor Browning lodged a formal complaint or sent
anything in writing to MIOSHA, but they called MIOSHA only to ask questions regarding
whether defendants could ask them to install the insulation and to determine what protective
equipment was needed for this task. Yet Coleman and Browning both called MIOSHA with
complaints as well as questions. During Coleman’s conversation with the MIOSHA
representative, she asked questions regarding safety and whether she was required to install the
insulation, but Coleman also reported to the representative that she believed that the insulation
was hazardous material, that she did not think she had been given proper instructions for
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installing insulation appropriately, that she was “in a predicament,” that she had gone to her
supervisor and asked her to provide more safety guidance than mere advice to wear a long sleeve
shirt when installing the insulation, that defendants stored the insulation in the club’s waiting
area, and that club members had commented that the insulation was hazardous material and had
asked why it was in the waiting area. When Browning called MIOSHA, she described the
situation to the representative, reported to him that her supervisor stated that the only requisite
protective gear for installing insulation was a long sleeve shirt, and told the representative that
she believed that this advice was wrong. Thus, both Coleman and Browning reported a violation
or suspected violation of the rules and regulations governing the proper installation of a
hazardous material, namely, fiberglass insulation. They did not call MIOSHA simply to ask
questions.
Moreover, there is no indication that plaintiffs acted in bad faith. Coleman warned
defendants that she could pose a risk to the club by installing the insulation without knowing
how to do so properly and without having any rules or guidelines to follow. Her conversations
with other employees regarding the insulation and its installation demonstrated her concern for
their well-being, as well as her own. Her report to the MIOSHA representative that defendants
were storing the insulation in the waiting area demonstrated her interest in the well-being of the
club’s members. Thus, her report to MIOSHA vindicated her interests, the interests of her fellow
employees, the interests of the club’s members, and the interests of the public in the enforcement
of regulations concerning the proper handling of material such as fiberglass insulation. Each
plaintiff demonstrated a concern for the safety of his or her fellow employees, as well as concern
for his or her own safety, as evidenced by the discussions plaintiffs had with each other
regarding defendants’ request to install the insulation.
Accordingly, plaintiffs’ phone calls and complaints to MIOSHA qualify as “reports of a
violation or a suspected violation” of a law or regulation of a public body, within the meaning of
the MWPA. Plaintiffs made these reports in good faith, thereby triggering protection under the
MWPA.
Finally, defendants argue that Browning is not entitled to protection under the MWPA
because she quit and, therefore, was not actually or constructively discharged. We disagree.
First, evidence presented to the trial court indicated that Browning was discharged: Browning
was asked to leave on the first day she returned to work after giving her two-week notice to quit.
Further, plaintiffs presented evidence indicating that Browning had been constructively
discharged. “[A] constructive discharge occurs only where an employer or its agent’s conduct is
so severe that a reasonable person in the employee’s place would feel compelled to resign.”
Champion v Nation Wide Security, Inc, 450 Mich 702, 710; 545 NW2d 596 (1996). “[T]he law
does not differentiate between employees who are actually discharged and those who are
constructively discharged. In other words, once individuals establish their constructive
discharge, they are treated as if their employer had actually fired them.” Id.
When Browning admitted that she called MIOSHA, she was told that she no longer had
the option to install the insulation; instead, she would have to accept a decrease in pay from ten
dollars per hour to seven dollars per hour in order for defendants to pay someone else to install
the insulation. After hearing this news, Browning gave defendants her two-week notice to quit.
We conclude that a reasonable person in Browning’s place would feel compelled to resign from
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her position when, immediately after admitting to her employer that she engaged in a protected
activity under the MWPA, she learned that her pay would be cut by 30 percent.
Finally, the MWPA explicitly protects not only those who are discharged or threatened
with discharge, but also those who are otherwise discriminated against regarding their
compensation and the terms and conditions of their employment. MCL 15.362. A thirty-percent
reduction in pay in retaliation for involvement in a protected activity qualifies as discrimination
pursuant to the MWPA. Accordingly, Browning was protected under the MWPA because the
evidence supports a finding that she was discharged, constructively discharged, or otherwise
discriminated against within the meaning of the MWPA.
Affirmed.
/s/ Brian K. Zahra
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
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