Thompson v. Aramark School ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0228p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellant, -
KIM THOMPSON,
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No. 05-2676
v.
,
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ARAMARK SCHOOL SUPPORT SERVICES, INC., -
Defendant-Appellee. -
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 04-00339—Robert Holmes Bell, Chief District Judge.
Submitted: April 20, 2007
Decided and Filed: June 19, 2007
Before: DAUGHTREY and GIBBONS, Circuit Judges; SCHWARZER, District Judge.*
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COUNSEL
ON BRIEF: Michael F. Smith, BUTZEL LONG, Bloomfield Hills, Michigan, Bethany Steffke
Sweeny, Rosalie Beth Harrison, BUTZEL LONG, Detroit, Michigan, for Appellee. Kim Thompson,
Benton Harbor, Michigan, pro se.
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OPINION
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WILLIAM W SCHWARZER, District Judge. Kim Thompson, a former food service worker
employed by defendant Aramark School Support Services, Inc. (Aramark), brought this action
alleging that she was terminated in violation of the Michigan Whistleblowers’ Protection Act
(WPA), Michigan Compiled Laws section 15.362. She contends that Aramark terminated her
because she reported violations of law by Aramark, specifically the existence of unsanitary
conditions in food storage and preparation areas, to the Benton Harbor School Board (the Board).
The district court granted Aramark’s motion for summary judgment, holding that Thompson could
not establish a causal connection between her protected activity and her termination, and that, even
if she did, Aramark had a legitimate, non-retaliatory reason for her termination. Finding sufficient
evidence to permit a reasonable jury to find a prima facie case of violation of the WPA, we vacate
the judgment and remand for further proceedings.
*
The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of
California, sitting by designation.
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FACTS AND PROCEDURAL HISTORY
Thompson was a fry cook and cart loader employed by the Benton Harbor Area Schools
(BHAS) beginning in 1995. In the later years of her employment, Thompson became involved in
various problems in her workplace. In 2001, the Board decided to privatize all food service workers
and Thompson along with the other workers became employees of Aramark, a change which
Thompson opposed. Following privatization, MEA (the union representing the workers) negotiated
a new contract with Aramark. The new contract made changes in seniority rights to which
Thompson objected. Thompson then helped bring in another union, AFSCME, which negotiated
a new contract. However, the new contract contained the same provisions on seniority. As a result,
relations between Thompson and other employees, who held her responsible, became strained.
Rodent problems had existed in the food service operation areas throughout Thompson’s
tenure but worsened in 2003. In August 2003, Thompson attempted to discuss the problem with the
school district superintendent but was rebuffed. In response to this incident, A.J. Haynes, Aramark’s
food service director, circulated a memorandum reminding Aramark employees that they were to
address their complaints to their Aramark supervisor.
On December 9, 2003, Thompson appeared at a meeting of the Board during the public
comment period. She complained about various aspects of Aramark’s food service operation
including that mice were running into the walk-in refrigerator and that there were rat droppings in
and around food being served to the children. Following this meeting, Haynes called her into his
office, reminded her that she should bring food service problems to a supervisor, and issued a verbal
reprimand, the first step in Aramark’s progressive discipline program. Around this time, Thompson
began secretly taking photographs to document the rodent problem.
Thompson spoke before the Board again on February 3, 2004, and reiterated her concerns
about the mouse problem and other aspects of Aramark’s food operation. After this meeting,
Haynes met again with Thompson and issued a letter of reprimand, constituting a final written
warning, for unbecoming conduct.
Thompson’s final meeting with the Board took place on March 2, when she took the Board
to task for complaining about her conduct rather than serving the people. One week later Thompson
attended a community meeting at which she announced her candidacy for the School Board and also
distributed the pictures she had taken of the food service operation. On March 19, Thompson
received a notice of suspension without pay, and on April 2, she was terminated for actions in
violation of Aramark’s “work rules and protocols.”
Thompson filed a complaint on April 19, 2004, in Berrien County, Michigan, Circuit Court,
alleging Aramark violated the WPA by terminating her in retaliation for her reports to the Board.
Aramark removed the case to federal court on the basis of diversity of citizenship. Following
discovery, Aramark moved for summary judgment. The district court granted Aramark’s motion
and entered judgment. Thompson, proceeding pro se, filed a timely notice of appeal.
DISCUSSION
Our review of a summary judgment is de novo, using the same standard as the district court.
Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995). We will affirm “if the evidence is
insufficient to reasonably support a jury verdict in favor of the nonmoving party.” Id. at 150. “In
arriving at a resolution, [we] must afford all reasonable inferences, and construe the evidence in the
light most favorable to the nonmoving party.” Id.; see Nat’l Enters. v. Smith, 114 F.3d 561, 563 (6th
Cir. 1997).
The WPA, in pertinent part, states:
No. 05-2676 Thompson v. Aramark School Support Services Page 3
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.
Mich. Comp. Laws § 15.362. To establish a prima facie case of retaliation under the WPA,
Thompson must show that: “(1) [she] was engaged in protected activity as defined by the act,
(2) [she] was discharged or discriminated against, and (3) a causal connection exists between the
protected activity and the discharge or adverse employment action.” West v. Gen. Motors Corp.,
665 N.W.2d 468, 471-72 (Mich. 2003).
It is not disputed that Thompson was discharged. As to whether she was engaged in a
protected activity, the district court, after reviewing the evidence, concluded that it did not need to
resolve the issue because it granted summary judgment on other grounds. Aramark has not raised
the issue on appeal, and thus the issue before us is whether Thompson has come forward with
sufficient evidence to raise a triable issue on whether she was discharged “because” she had engaged
in a protected activity.
The district court held that Thompson had failed as a matter of law to establish a causal
connection between her actions and subsequent dismissal. The court found that Thompson had a
duty to report unsanitary conditions in the food service area to her supervisors and it was her failure
to report that led to her dismissal. Her disregard of her employment duties, the court found, not her
speeches to the school board, caused the dismissal. Citing to West, 665 N.W.2d at 472-73, the
district court held that the temporal connection between her conduct and termination was not
sufficient to establish a prima facie case under the WPA.
The record, however, contains substantial evidence that there was more than a temporal
connection between Thompson’s conduct and her dismissal. Haynes stated that prior to December
2003, Thompson had never been disciplined and had performed her job. Deposition of A.J. Haynes,
J.A. 533-34. The reprimand she received on December 16 was her first and at his deposition Haynes
agreed that it was “for her comments at the December 9th Board meeting.” Deposition of A.J.
Haynes, J.A. 107-08, 519-20. Thompson recalled that at her meeting with Haynes, he asked her how
she could work for Aramark and go to a Board meeting and talk about Aramark. Deposition of Kim
Thompson, J.A. 619. When Haynes called Thompson to his office on February 9, following the
February 3 Board meeting, he reprimanded her again, stating that, “what you said . . . was an attack
and accusation against Aramark . . . . You questioned Aramark’s integrity.” Transcript of February
9 Meeting, J.A. 641. He issued a “final written warning” that day “for unbecoming conduct
displayed on Tuesday, February 3, 2004.” Letter of Reprimand, J.A. 638. The warning referred to
her “offensive comments” to the Board on February 3 and December 9 and concluded that her
actions “were inappropriate and will not be tolerated.” Letter of Reprimand, J.A. 638. Thompson
was suspended on March 19, 2004, approximately two weeks after speaking at the March 2 Board
meeting. Letter of Suspension, J.A. 643. She was terminated on April 2 for what Haynes testified
were the “false allegations” she made to the Board. Deposition of A.J. Haynes, J.A. 519-20; see also
Letter of Termination, J.A. 646.
This evidence distinguishes this case from others in which Michigan courts found no causal
connection. In Shallal v. Catholic Social Services, plaintiff knew her discharge was imminent before
the protected activity on which she based her whistleblower claim. Shallal v. Catholic Social
No. 05-2676 Thompson v. Aramark School Support Services Page 4
Services, 566 N.W.2d 571, 579 (Mich. 1997). Other plaintiffs failed to show a causal connection
because the evidence indicated the employer either terminated plaintiff before finding out about the
protected activity or because the employer knew of the activity but considered it inconsequential.
West, 665 N.W.2d at 473 (finding summary judgment appropriate because the supervisors did not
care about plaintiff’s activity and were not part of the decision to terminate plaintiff); Roberson v.
Occupational Health Ctrs. of Am., Inc., 559 N.W.2d 86, 88 (Mich. Ct. App. 1996) (finding summary
judgment appropriate because the supervisor terminated plaintiff before finding out about the
activity). Thompson’s case is more akin to that of the plaintiff in Henry v. City of Detroit, where
plaintiff, a decorated police officer who had never been reprimanded, was forced to retire or take
a demotion after giving deposition testimony that had upset the chief of police. Henry v. City of
Detroit, 594 N.W.2d 107, 112 (Mich. Ct. App. 1999). The court there held that, “[w]hether the
deposition or plaintiff's job performance was the real reason for defendants' action against plaintiff
was a question properly left to the jury.” Id. at 113.
The district court further held that even if Thompson could establish a prima facie case of
retaliation she would be unable to prevail because Aramark had articulated a legitimate, non-
retaliatory reason for its action. Once the plaintiff has proved a prima facie case, the burden shifts
to the defendant to articulate a legitimate business reason for the plaintiff’s discharge. Taylor v.
Modern Eng’g, Inc., 653 N.W.2d 625, 628 (Mich. 2002). While there is evidence that Haynes had
criticized Thompson for not reporting unsanitary conditions to her supervisors and for having taken
pictures of these conditions, the only evidence of Aramark’s reason for her termination is a letter
from Haynes, dated April 2, 2004, which states in relevant part:
We have completed our investigation and review of your actions and have
determined that such actions are in violation of Aramark’s work rules and protocols.
Accordingly, your employment with Aramark School Support Services is terminated
effective April 12, 2004.
Letter of Termination, J.A. 646. The letter leaves unanswered which actions Aramark regarded as
violations—whether they were Thompson’s statements to the Board or her failure to report to her
supervisors—and thus it cannot be said as a matter of law that Thompson was terminated for a
legitimate, non-retaliatory reason. See Hopkins v. City of Midland, 404 N.W.2d 744, 750 (Mich. Ct.
App. 1987) (noting that at the pretext stage of the analysis the question of mixed motive, i.e.,
retaliation plus a legitimate business reason, must be considered).
CONCLUSION
We therefore conclude that the evidence establishes a prima facie case under the WPA and
that the question of whether Aramark acted on the basis of a legitimate, non-retaliatory reason in
discharging Thompson is a disputed question of fact precluding summary judgment.
VACATED and REMANDED.