AARON L WAJER V OUTDOOR ADVENTURES INC
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STATE OF MICHIGAN
COURT OF APPEALS
AARON L. WAJER,
UNPUBLISHED
January 25, 2011
Plaintiff-Appellant,
v
OUTDOOR ADVENTURES, INC., GREG KING,
HEATHER FOCO, and RON PENIX,
No. 294985
Genesee Circuit Court
LC No. 09-090633-CL
Defendants-Appellees,
and
SPENDER & ROBB,
Defendant.
Before: METER, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ.
PER CURIAM.
Plaintiff appeals as of right from a circuit court order granting defendants’ motion for
summary disposition under MCR 2.116(C)(8) and (10) on the basis that plaintiff’s action,
alleging a violation of the Whistleblower Protection Act (WPA), MCL 15.361 et seq., was not
filed within the 90-day limitations period set forth in MCL 15.363(1). We affirm. This appeal
has been decided without oral argument pursuant to MCR 7.214(E).
We review de novo a trial court’s decision regarding a motion for summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
Plaintiff’s complaint alleged that he was terminated from his employment on October 24,
2008, in violation of the WPA. Section 3(1) of the WPA, MCL 15.363(1), provides that “[a]
person who alleges a violation of this act may bring a civil action for appropriate injunctive
relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of
this act.” Plaintiff filed his complaint on February 17, 2009, which was more than 90 days after
he was terminated.
Plaintiff relies on the continuing violations doctrine to argue that his complaint was
timely filed. However, the Supreme Court repudiated that doctrine in Garg v Macomb Co
Community Mental Health Servs, 472 Mich 263, 290; 696 NW2d 646 (2005), amended 473
-1-
Mich 1205 (2005). Although the Garg Court did not expressly overrule Phinney v Perlmutter,
222 Mich App 513, 546; 564 NW2d 532 (1997), in which this Court applied the doctrine to a
WPA claim, the Garg Court made the general statement that “the doctrine has no continued
place in the jurisprudence of this state.” Garg, 472 Mich at 290. Moreover, the Phinney Court
relied on Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), and the
Garg Court expressly overruled Sumner. Garg, 472 Mich at 290. Therefore, the continuing
violations doctrine was inapplicable in the instant case, and the trial court did not err in granting
defendants’ motion for summary disposition.1
Affirmed.
/s/ Patrick M. Meter
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause
1
Even assuming, for purposes of argument, that the continuing violations doctrine is viable
under the WPA, there would be no basis for applying the doctrine in this case. “[T]he mere
existence of a continuing violation is insufficient if none of the relevant conduct occurred with
the limitation period.” Phinney, 222 Mich App at 548. Plaintiff does not identify any retaliatory
action that took place within the 90-day period preceding the filing of his complaint. Indeed,
plaintiff set forth in his complaint alleged retaliatory actions but did not specify that they fell
within the applicable 90-day period.
-2-
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