Michael Ramsey v. Laborers Local 1191 ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL RAMSEY and GLENN DOWDY, UNPUBLISHED
May 23, 2017
Plaintiffs-Appellants,
v No. 329920
Wayne Circuit Court
LABORERS’ LOCAL 1191, doing business as LC No. 10-004708-CD
ROAD CONSTRUCTION LABORERS OF
MICHIGAN LOCAL 1191, and MICHAEL
AARON,
Defendants-Appellees,
and
BRUCE RUEDISUELI,
Defendant.
Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.
PER CURIAM.
Plaintiffs, Michael Ramsey and Glenn Dowdy, appeal as of right the trial court’s order
granting summary disposition for defendants, Laborers’ Local 1191 (Local 1191) and Michael
Aaron, under MCR 2.116(C)(10) on their claims of retaliatory discharge under the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and Ramsey’s claim for discharge
in violation of public policy.1 For the reasons stated in this opinion, we affirm the trial court’s
dismissal of Ramsey’s public policy claim, but reverse the court’s decision to dismiss plaintiffs’
WPA claims.
1
Ramsey and Dowdy’s claims against defendant Bruce Ruedisueli were dismissed after the
parties accepted the case evaluation award. Therefore, references to “defendants” refer only to
defendant-appellees, Aaron and Local 1191.
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I. BASIC FACTS
Local 1191 is a labor union representing construction workers. On May 1, 2009,
defendant Aaron was appointed as the business manager of the union after his predecessor
resigned. At that time, defendant Bruce Ruedisueli served as the elected president of the union’s
executive board. The union also employed several unelected business agents who served at the
pleasure of the business manager. At all times relevant to this appeal, plaintiffs Ramsey and
Dowdy were both members of the union’s executive board and were business agents. When
Aaron was appointed business manager, he continued intermittent or rolling layoffs of the
business agents as a cost-saving measure related to the 2008 economic downturn’s effect on
union dues. In addition, he had the business agents affirm their at-will status by signing
resignation letters with a blank effective date.
It appears that not everyone in the union was happy with Aaron’s management. There is
evidence that starting in August or September 2009, several union members met in secret to
discuss their discontent with Aaron as business manager.2 The members present at those
meetings included plaintiffs, Ruedisueli, Anthony Henry, Keith White, Duane Robinson, Tony
Garza, and Jimmy Cooper. At the meetings, they apparently discussed whether they could oust
Aaron as business manager and replace him before the June 2010 union election. At some of the
meetings, there were also discussions about running a slate against Aaron in the upcoming
election. It appears that, in September 2009, a main topic of discussion at the meetings was
Aaron’s allegedly illegal conduct related to a job at the Trade Union Labor Council (TULC).3 At
2
There is some confusion in the record as to what month the secret meetings began. White
testified that the meetings first started in August 2009. Dowdy, however, expressly testified that
the first meeting occurred in September 2009, then, later in his testimony he impliedly agreed
that there were meetings that occurred before September 2009. When asked to clarify his
testimony, he testified that he had never attended any meetings before September 2009 where he
“talked politics.” He also asserted that the first time he met with White, Henry, Cooper, or
anyone else was after the Trade Union Labor Council (TULC) job was completed.
3
In September 2009, Aaron coordinated a project in which unemployed members of Local 1191
removed a crumbling brick façade at the TULC building. According to defendants, TULC “is a
non-profit community, charitable and civil rights organization that provides, among other things,
job training and community and social services.” Defendants contend that they informed
workers before they came that they would be doing volunteer work or community service for
TULC. Plaintiffs assert that the workers were falsely informed that Local 1191 was holding a
training session and that the workers learned only after they arrived that that they would be
working on the TULC building. Defendants deny that any worker was required to work on the
TULC project. Regardless, it is undisputed Local 1191 paid the workers a $30 daily stipend for
two days of work. The workers’ checks had the notation “Picket Line 2 Days” written on the
memorandum line, which refers to a fund used to pay striking workers a daily stipend for picket
line participation. Ruedisueli signed the checks, although he was concerned that the “picket
line” notation was false.
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one of the meetings, a letter drafted by Henry regarding the allegedly illegal and unethical
actions taken by Aaron in relation to the TULC job was discussed by the group.
On September 25, 2009, the letter was sent anonymously to the union’s membership, its
executive board, and local news outlets. The letter suggested that Aaron was involved in
criminal activity, including fraud, an illegal kickback scheme, and misappropriation of union
funds. It also insinuated that Local 1191 required the members at the TULC building to work
without receiving proper wages.4 The letter was read aloud at the executive board meeting, and
it was determined that the allegations would be investigated.
In October 2009, Ramsey, Henry, and White contacted the United States Department of
Labor with their suspicions as it related to Aaron’s actions regarding the TULC job.
Subsequently, on November 11, 2009, Aaron notified Henry and White that they were
indefinitely laid off from employment at Local 1191. Aaron asserted that the reason for the
layoffs was the “extremely difficult economic climate.” Henry and White, however, believed
that they were terminated because of their report of suspected illegal activity to the Department
of Labor. They both filed suit against Aaron, Ruedisueli, and Local 1191, asserting that they had
been discharged in violation of the WPA.
During discovery in the Henry/White lawsuit, in March 2010, Aaron learned for the first
time that Ramsey had also reported the suspected illegal activity regarding the TULC job to the
Department of Labor. And, although he already knew that Dowdy had been interviewed by the
Department of Labor in connection with the TULC job in either late December 2009 or early
January 2010, he learned for the first time that Dowdy believed that Aaron’s involvement in the
TULC job was illegal. A few weeks later, on April 9, 2010, Aaron terminated Ramsey’s and
Dowdy’s employment as business agents at Local 1191. Ramsey and Dowdy filed suit against
Aaron, Ruedisueli, and Local 1191, asserting that they were discharged in violation of the WPA,
and, in Ramsey’s case, that he was also terminated in violation of public policy because he had
refused to lie during his deposition.
In both the Henry/White lawsuit and the instant action, defendants moved for summary
disposition under MCR 2.116(C)(4), on the grounds that the Federal Labor Management
Reporting and Disclosure Act, 29 USC 401 et seq., and the National Labor Relations Act, 29
USC 151 et seq., preempted the state law claims. The trial court denied the motions, and this
Court affirmed that decision. Henry v Laborers’ Local 1191, unpublished opinion per curiam of
the Court of Appeals, issued July 3, 2012 (Docket Nos. 302373, 302710). Defendants appealed
to our Supreme Court, which affirmed this Court’s decision in part, holding that this Court
“correctly determined that federal law did not preempt plaintiffs’ WPA claims premised on their
allegations of criminal misconduct,” but that plaintiffs’ claims of unlawful retaliation for
reporting improper wages and unsafe work environment “must be litigated exclusively” before
the National Labor Relations Board. Henry v Laborers’ Local 1191, 495 Mich. 260, 268-268,
297; 848 NW2d 130 (2014). The Supreme Court remanded the case to the trial court and stated,
4
During the proceedings, it was also alleged that the workers at the TULC job site were required
to work without proper safety precautions, such as hard hats and steel-toed boots.
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“Going forward, plaintiffs may only pursue in state court their WPA claims involving retaliation
for their reporting of alleged illegal conduct to a public body or bodies.” Id. at 297.
The Henry/White litigation settled and was dismissed with prejudice by stipulation.
In the instant case, defendants moved for summary disposition under MCR 2.116(C)(10).
Defendants assumed for the purposes of their motion that Ramsey and Dowdy could establish
that they engaged in a protected activity and that they suffered an adverse employment decision;
however, defendants argued that Ramsey and Dowdy could not show a causal connection
between their participation in a protected activity and the adverse employment decision. The
trial court agreed and granted the motion for summary disposition.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Ramsey and Dowdy argue that the trial court erred by granting summary disposition
because there was a question of fact as to whether they were discharged in violation of the WPA.
We review de novo a trial court’s decision to grant summary disposition. Maiden v Rozwood,
461 Mich. 109, 118; 597 NW2d 817 (1999). Summary disposition may be granted under MCR
2.116(C)(10) when “there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” This Court must consider any
evidence submitted by the parties and view that evidence in the light most favorable to the
nonmoving party to determine whether a genuine issue of material fact exists. Maiden, 461
Mich. at 120. A genuine issue of material fact exists when the record leaves open “an issue upon
which reasonable minds might differ.” Debano–Griffin v Lake Co, 493 Mich. 167, 175; 828
NW2d 634 (2013) (citation and quotation marks omitted).
B. WHISTLEBLOWERS’ PROTECTION ACT
The WPA provides:
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.
[MCL 15.362.]
“Under the WPA, a plaintiff may establish a prima facie case by showing that (1) the plaintiff
was engaged in protected activity as defined by the act, (2) the defendant took an adverse
employment action against the plaintiff, and (3) ‘a causal connection exists between the
protected activity’ and the adverse employment action.” Debano-Griffin, 493 Mich. at 175,
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quoting Chandler v Dowell Schlumberger Inc, 456 Mich. 395, 399; 572 NW2d 210 (1998). The
first two requirements are not disputed on appeal.5
In order to establish a causal connection between the protected activity and the adverse
employment action, a plaintiff must show “[s]omething more than a temporal connection
between protected conduct and an adverse employment action . . . .” West v Gen Motors Corp,
469 Mich. 177, 186; 665 NW2d 468 (2003). However, evidence that the direct recipient of a
plaintiff’s complaint is the same individual that made the decision to discharge the plaintiff
“strengthens the causal link between plaintiff’s protected activity and defendants’ adverse action
because it is reasonable to infer that the more knowledge the employer has of the plaintiff’s
protected activity, the greater the possibility of an impermissible motivation.” Debano-Griffin,
493 Mich. at 178. Likewise, “it is reasonable to conclude that the more an employer is affected
by the plaintiff’s whistleblowing activity, the stronger the causal link becomes between the
protected activity and the employer’s adverse employment action.” Id. In addition, evidence
that an employer “expressed clear displeasure with the protected activity engaged in by the
plaintiff” can also support an inference that there is a causal connection between the protected
activity and the adverse employment action. West, 469 Mich. at 186-187, citing Henry v Detroit,
234 Mich. App. 405, 414; 594 NW2d 107 (1999). A plaintiff is not required to rely on direct
evidence of an employer’s unlawful motivations and may instead rely on indirect evidence “to
show that a causal link exists between the whistleblowing act and the employer’s adverse
employment action.” Debano-Griffin, 493 Mich. at 176.
Defendants assert that Ramsey and Dowdy cannot establish a causal connection between
their protected activity and Aaron’s decision to fire them because they both admitted in their
depositions that they did not know of any facts showing that Aaron fired them for their
involvement with the Department of Labor regarding the TULC job. Ramsey reported his
suspicions that the TULC incident involved illegal activity to the Department of Labor in
October 2009, but he was not terminated until April 2010. Dowdy was interviewed in
connection with the TULC incident in either late December 2009 or early January 2010, but was
not terminated until April 2010. Defendants argue that, as a result, the temporal proximity
between Ramsey’s protected activity and the adverse employment action was about six months,
whereas the time between Dowdy’s protected act and the adverse employment action against him
was about three or four months. However, the record reflects that Aaron, the individual solely
responsible for firing them, first learned of Ramsey’s report to the Department of Labor and the
scope of Dowdy’s interview in March 2010. Then, within a few weeks of learning of the
protected activity, Aaron terminated their employment. The timing could allow a factfinder to
reasonably infer that Ramsey and Dowdy were the victims of unlawful retaliation. See Debano-
Griffin, 493 Mich. at 176. Moreover, the fact that the TULC accusations were directed at
5
For the purpose of this opinion, we assume without deciding that Ramsey engaged in a
protected activity when he reported Aaron’s actions with regard to the TULC incident to the
Department of Labor and that Dowdy engaged in a protected activity when he participated in the
Department of Labor’s subsequent investigation. See West v Gen Motors Corp, 469 Mich. 177,
184 n 9; 665 NW2d 468 (2003).
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Aaron’s allegedly illegal conduct and the fact that he was the individual solely responsible for
firing them further strengthens the causal connection in this case. See id. at 178. In addition,
Aaron testified that when he heard TULC letter read at the executive board meeting, he was
aggravated. He added that, a week later, he was still very aggravated. He stated that when
Ruedisueli tried to question him about the letter he “asked him to get out of my office.” He also
indicated that when the union lawyer asked him whether he received a kickback he was “pissed”
with the lawyer. Because the report to the Department of Labor and subsequent investigation
involved the TULC job and the same allegations raised in the letter that aggravated Aaron, it is
reasonable to infer that Aaron was also angry about the incident being reported to the
Department of Labor. Also relevant to whether there is a causal connection in this case is the
fact that the only business agents who were fired or laid off after the TULC incident were the
individuals who Aaron knew had contact with the Department of Labor.6
When viewed in a light most favorable to Ramsey and Dowdy, the foregoing facts
support a reasonable inference that they were the victims of an unlawful retaliation as a result of
their decision to engage in a protected activity. Therefore, Ramsey and Dowdy established their
prima facie case. Once a plaintiff establishes a prima facie case, the burden then shifts to the
defendant employer to offer a legitimate reason for the adverse employment action. Id. Here,
Aaron asserted that he fired Ramsey and Dowdy for disloyalty and deceit. In particular, he notes
that in March 2010, he first learned that Ramsey and Dowdy were part of a group of members
who began secretly meeting and plotting his ouster in August 2009—before the TULC
allegations arose.7 Further, Aaron stated that Ramsey and Dowdy told him that they supported
him, which, in light of their plotting to oust him, was clearly a lie. Defendants correctly note
6
Duane Robinson, one of the business agents involved in the secret meetings, testified that he
was told by a union member, Roy Mathis, that Aaron told Mathis that he was “going to handle
his business” and “was going to make them pay for what they had done” with regard to the
TULC allegations. Robinson stated that Mathis was not clear on who “they” were, but he
assumed it meant the people responsible for creating the TULC problem for Aaron. We do not
consider this testimony on appeal because, although Aaron’s statements constitute a party-
opponent admission and are admissible under MRE 801(d)(2), Mathis’s purported statements to
Robinson appear to be hearsay for which no exception applies. See generally MRE 803 and
MRE 804. The presentation of inadmissible hearsay evidence on a motion for summary
disposition under MCR 2.116(C)(10) is merely a promise “to create an issue for trial where the
promise is incapable of being fulfilled.” Maiden, 461 Mich. at 123 n 5. Accordingly, we do not
consider this testimony on appeal. Nevertheless, should the case proceed to trial, we see no bar
at present to Mathis testifying to any relevant statements that Aaron made to him.
7
Again, there is testimony that the meetings started in August 2009 and there is also testimony
that they did not start until September 2009. Because Aaron purportedly relied on White’s
testimony that they started in August 2009 when he determined that there were meetings before
the TULC allegations arose, we must evaluate his claimed reason for terminating Ramsey and
Dowdy’s employment in light of the earlier date.
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that, because Ramsey and Dowdy were at-will employees, he had a right to fire them for any
reason, including for their disloyalty.
That does not end our inquiry, however. A plaintiff may rebut an employer’s facially
legitimate reason for its adverse action by showing that the stated reason is merely a pretext for
the unlawful retaliatory discharge. Roulston v Tendercare (Mich), Inc, 239 Mich. App. 270, 281;
608 NW2d 525 (2000). In looking at whether a plaintiff can show that a stated reason is merely
a pretext for unlawful retaliation, a court may consider:
(1) whether participation in the protected activity played any part in the discharge,
no matter how remote, (2) whether the plaintiff’s protected activity was a
substantial factor in the discharge, (3) whether the plaintiff’s protected activity
was the principal, but not sole, reason for the discharge, or (4) whether the
discharge would have occurred had there been no protected activity. 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. [Id.]
Further, a plaintiff can show pretext “(1) by showing the reasons had no basis in fact, (2) if they
have a basis in fact, by showing that they were not the actual factors motivating the decision . . .
.” Dubey v Stroh Brewery Co, 185 Mich. App. 561, 565-566; 462 NW2d 758 (1990). Here,
defendant’s stated reason for discharging Ramsey and Dowdy has a basis in fact. Ramsey and
Dowdy were participating in secret meetings to oust Aaron as business manager, and they
concealed their involvement. Nevertheless, Ramsey and Dowdy have come forward with
evidence showing that their disloyalty and deceit were not the actual motivating factors for
terminating their employment. Several employees participated in the secret meetings to oust
Aaron as business manager. The four business agents that were subsequently fired were
Ramsey, Dowdy, Henry, and White, all of whom either reported or were involved in the
Department of Labor’s investigation of the TULC job. The other business agents, Robinson,
Garza, and Ruedisueli, however, were not terminated despite the fact that they were also disloyal
when they participated in the secret meetings. Moreover, although Aaron testified that Ramsey
and Dowdy’s involvement with the Department of Labor was not a basis for his decision to
terminate their employment, he also indicated that Ramsey’s disloyalty encompassed his denial
of knowing anything about the issues raised about TULC. Therefore, viewing the facts in the
light most favorable to plaintiffs, there is a jury submissible question on whether the stated
reasons were merely a pretext for an unlawful retaliation.
C. DISCHARGE IN VIOLATION OF PUBLIC POLICY
Ramsey also claims that his discharge was contrary to public policy. Generally,
employment contracts are terminable at will by either party. Suchodolski v Mich Consol Gas Co,
412 Mich. 692, 694-695; 316 NW2d 710 (1982). “However, an exception has been recognized to
that rule, based on the principle that some grounds for discharging an employee are so contrary
to public policy as to be actionable.” Id. at 695. This exception includes discharge of an
employee for the reason that the employee failed or refused “to violate a law in the course of
employment.” Id. Ramsey contends that Ruedisueli asked him to testify falsely in his deposition
and that, after he refused to do so, he was terminated from employment. However, Ruedisueli,
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not Aaron, requested that Ramsey violate the law against perjury by giving false testimony to
conceal Ruedisueli’s disloyal conduct from Aaron. There is no factual basis for inferring that
Aaron discharged Ramsey for refusing to give perjured testimony when that perjury would have
been for Ruedisueli’s benefit and to Aaron’s detriment. Ramsey’s assertion that Ruedisueli
influenced Aaron to discharge Ramsey relies instead on pure conjecture. Accordingly,
defendants were entitled to summary disposition on this claim.
Reversed and remanded in part and affirmed in part. We do not retain jurisdiction.
Neither party having prevailed in full, we decline to award costs pursuant to MCR 7.219.
/s/ Michael J. Kelly
/s/ Jane M. Beckering
/s/ Douglas B. Shapiro
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