Richard L Wurtz v. Beecher Metropolitan District , 495 Mich. 242 ( 2014 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Corbin R. Davis
WURTZ v BEECHER METROPOLITAN DISTRICT
Docket No. 146157. Argued December 10, 2013 (Calendar No. 9). Decided April 25, 2014.
Richard L. Wurtz brought an action in the Genesee Circuit Court against the Beecher
Metropolitan District (a water and sewage district), Jacquelin Corlew, Leo McClain, and Sheila
Thorn, alleging a violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq.,
and wrongful termination in violation of public policy. Wurtz had served as the district’s
administrator from February 1, 2000, until February 1, 2010, pursuant to a contract he drafted
earlier while he was the district’s attorney. The individual defendants were those members of the
district’s five-member board who voted not to renew Wurtz’s contract. The tension between
Wurtz and the board began in May 2008 when he reported an alleged violation of the Open
Meetings Act by the individual defendants and continued through November 2009 when he
reported to the sheriff’s department and the newspaper what he alleged were improprieties in
reimbursements to the board for attendance at an out-of-state conference. The board voted to not
renew Wurtz’s contract, but allowed him to finish his full 10-year term, and he received all his
salary and benefits during that term. Defendants moved for summary disposition, arguing that
Wurtz had not been fired because his contract expired by its own terms. The court, Judith A.
Fullerton, J., dismissed the public-policy claim, holding that the WPA provided Wurtz’s
exclusive avenue of relief. The court also concluded that Wurtz could not satisfy the WPA’s
elements because he had worked the entire term of his contract and not been discharged. Wurtz
appealed, and the Court of Appeals, WHITBECK, P.J., and JANSEN, J. (K. F. KELLY, J.,
dissenting), reversed, holding that summary disposition was inappropriate because an employer’s
failure to renew a contract employee’s fixed-term contract satisfied the WPA’s requirement that
the employee suffer an adverse employment action. 298 Mich App 75 (2012). The Supreme
Court granted defendants’ application for leave to appeal. 494 Mich 862 (2013).
In an opinion by Justice ZAHRA, joined by Chief Justice YOUNG and Justices MARKMAN,
KELLY, MCCORMACK, and VIVIANO, the Supreme Court held:
Under MCL 15.362, a plaintiff must demonstrate three elements to establish a prima facie
case that the defendant employer violated the WPA: (1) the employee was engaged in a protected
activity listed in the WPA, (2) the employee was discharged, threatened, or otherwise
discriminated against regarding his or her compensation, terms, conditions, location, or
privileges of employment, and (3) a causal connection existed between the employee’s protected
activity and the employer’s act of discharging, threatening, or otherwise discriminating against
the employee. By its express language, the WPA applies only to individuals who experience one
or more of the statute’s enumerated adverse employment actions with respect to their status as
employees. A contract employee seeking a new term of employment should be treated the same
as a prospective employee for purposes of the WPA. The WPA has no application in the hiring
context. It excludes job applicants and prospective employees from its protections and,
therefore, does not apply when an employer declines to renew a contract employee’s contract.
Absent some express obligation stating otherwise, a contract employee has absolutely no claim
to continued employment after his or her contract expires. Wurtz had no recourse under the
WPA because he alleged only that his former employer declined to renew his contract, not that
the employer took some adverse action against him during his contractual term of employment.
Wurtz’s claim failed as a matter of law, and summary disposition was not premature because no
amount of additional discovery could have shown that Wurtz came within the WPA’s
protections.
Reversed and remanded.
Justice CAVANAGH concurred in the result.
©2014 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED APRIL 25, 2014
STATE OF MICHIGAN
SUPREME COURT
RICHARD L. WURTZ,
Plaintiff-Appellee,
v No. 146157
BEECHER METROPOLITAN DISTRICT,
JACQUELIN CORLEW, LEO McCLAIN,
and SHEILA THORN
Defendants-Appellants.
BEFORE THE ENTIRE BENCH
ZAHRA, J.
This case requires the Court to consider the application of Michigan’s
Whistleblowers’ Protection Act (WPA)1 to a contract employee whose contract is not
renewed ostensibly because of the employee’s whistleblowing activities. A contract
employee whose term of employment has expired without being subject to a specific
1
MCL 15.361 et seq.
adverse employment action identified in the WPA and who seeks reengagement for a
new term of employment occupies the same legal position as a prospective employee.
The WPA, by its express language, only applies to current employees; the statute offers
no protection to prospective employees. Because the WPA does not apply when an
employer decides not to hire a job applicant, it likewise has no application to a contract
employee whom the employer declines to rehire for a new term of employment. The
plaintiff in this case has no recourse under the WPA because he alleges only that his
former employer declined to renew his contract, not that the employer took some adverse
action against him during his contractual term of employment. Accordingly, we reverse
the Court of Appeals’ contrary decision and remand this case to the circuit court for entry
of summary disposition in defendants’ favor.
I. FACTS AND PROCEEDINGS
The Beecher Metropolitan District (the District) manages water and sewage for a
portion of Genesee County. The District has five elected board members and also
employs a part-time district administrator who manages District operations on a day-to-
day basis. The District has 11 full-time employees who do various maintenance and
clerical jobs. The District’s full-time employees operate under a union contract; only the
district administrator historically operates under a separate contract with the District.
Plaintiff Richard Wurtz began his tumultuous tenure as the district administrator
on February 1, 2000, and served until February 1, 2010. Before becoming district
administrator, Wurtz was the District’s attorney. In his capacity as attorney, he drafted
the contract that would govern his term as district administrator. The contract provided
2
for a 10-year term beginning on February 1, 2000, and ending on February 1, 2010. The
board approved the contract and Wurtz became district administrator.
Tension between Wurtz and the board developed in May 2008 when Wurtz
reported an alleged violation of the Open Meetings Act (OMA)2 to the Genesee County
Prosecutor. In a letter dated May 22, 2008, Wurtz informed the prosecutor that board
members Sheila Thorn, Leo McClain, and Jacquelin Corlew—the three individual
defendants in this case—had met with a labor attorney outside of a public meeting to
discuss retaining the attorney. The prosecutor, however, declined to prosecute. Several
months later, Wurtz demanded a benefits increase commensurate with those given to the
District’s unionized employees. He told the board that he was the one who filed the
OMA complaint and said that he would treat the board’s failure to capitulate as retaliation
for his reporting the alleged OMA violations. The board granted Wurtz the increase he
desired, with two of the defendant board members voting against his benefits increase
and one voting in favor.
In early 2009, Wurtz sent a proposal to the board regarding his contract. Wurtz
said he could save the District money by reducing his salary and cutting off all of his
benefits except life insurance. But the proposal also would have extended Wurtz’s
already tumultuous term for an additional 21/2 years. A motion to accept Wurtz’s
proposal was defeated by a vote of 3 to 2. Thorn, McClain, and Corlew voted against
Wurtz’s proposal.
2
MCL 15.261 et seq.
3
Relations between Wurtz and the board further deteriorated in the spring of 2009.
The board had plans to attend the American Water Works Association conference in San
Diego. Wurtz told the board that he had concerns about the cost of the trip and the
manner of reimbursement. He noted several recreational items that he thought it would
be inappropriate to subsidize with taxpayer funds. Wurtz nonetheless reimbursed the
board for the expenses.
Despite having issued the reimbursement checks himself, Wurtz contacted the
Genesee County Sheriff’s Department and the Flint Journal regarding the board’s trip to
San Diego. This resulted in the sheriff’s department raiding the District’s office and
public outcry about the board members’ actions. Wurtz cooperated with the investigation
conducted by the sheriff’s department. The board members were criminally charged in
connection with the trip, but all were acquitted of wrongdoing or had the charges against
them dismissed.
Events came to a head in November 2009, several months before Wurtz’s contract
was set to expire. At the November 11, 2009 meeting, Wurtz warned the board that he
would consider the board’s failure to extend his contract to be retaliation for the criminal
investigation. The board, however, refused to heed Wurtz’s warning and voted 3 to 2 not
to renew Wurtz’s contract and to begin the search for a new district administrator. The
majority once again consisted of Thorn, McClain, and Corlew. Wurtz’s attorney wrote a
letter to the board informing it that Wurtz intended to file a claim under the WPA. But
the board replied that it would not change its mind, citing other, legitimate reasons for
deciding not to renew Wurtz’s contract. The board explained that the tumultuous
relationship between Wurtz and the board members far preceded any alleged
4
whistleblowing activities, and furthermore, that it wished to make the administrator job
full-time. Wurtz could not hold the position full-time because of his law practice.
Despite the total breakdown of the working relationship, the board allowed Wurtz
to finish out his contract. Wurtz’s employment with the District expired on February 1,
2010, by the terms of the contract. One essential and undisputed fact bears emphasis:
Wurtz suffered no adverse consequences in the context of his self-drafted 10-year
contract. He received all of the salary and benefits to which he was entitled, and he was
employed as district administrator for each and every day of the agreed-to term.
After his employment ended, Wurtz brought suit in Genesee Circuit Court against
the District and the three board members who voted not to renew his contract, alleging a
violation of the WPA and wrongful termination in violation of public policy. Defendants
moved for summary disposition, arguing that Wurtz had not been fired because his
contract expired by its own terms. Wurtz argued that his employment was terminated
and, further, that summary disposition was premature because discovery was incomplete.
But the court agreed with defendants. First, the court dismissed the public policy claim,
holding that the WPA provided the exclusive avenue of relief to Wurtz. Then the court
concluded that Wurtz could not satisfy all of the WPA’s elements because he had worked
through the entirety of his contract and was not discharged.
Wurtz appealed the circuit court’s decision to the Court of Appeals, which
reversed in a split opinion.3 The majority concluded that summary disposition was
inappropriate because, in its view, an employer’s failure to renew a contract employee’s
3
Wurtz v Beecher Metro Dist, 298 Mich App 75; 825 NW2d 651 (2012).
5
fixed-term contract satisfied the WPA’s requirement that the employee suffer an adverse
employment action.4 The dissent, on the other hand, would have held as a matter of law
that Wurtz could not satisfy the WPA’s elements based on the nonrenewal of a fixed-term
contract.5 Defendants sought leave to appeal in this Court, which we granted.6 We asked
the parties to address “(1) whether the plaintiff suffered an adverse employment action
under the [WPA] when the defendants declined to renew or extend the plaintiff’s
employment contract, which did not contain a renewal clause beyond the expiration of its
ten-year term; and (2) whether there was a fair likelihood that additional discovery would
have produced evidence creating a genuine issue of material fact, MCR 2.116(C)(10), if
the defendants’ motion for summary disposition had not been granted prior to the
completion of discovery.”7
II. STANDARD OF REVIEW
The interpretation of the WPA presents a statutory question that this Court reviews
de novo.8 The Court also reviews de novo decisions on motions for summary disposition
brought under MCR 2.116(C)(10).9
4
Id. at 88.
5
Id. at 91 (K.F. KELLY, J., dissenting).
6
Wurtz v Beecher Metro Dist, 494 Mich 862 (2013).
7
Id.8
Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013).
9
Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012).
6
III. ANALYSIS
This case invites the Court to decide whether the WPA applies when an employer
declines to renew an employee’s fixed-term contract following alleged whistleblowing by
the employee. To answer this question, we first conclude that a contract employee
seeking a new term of employment should be treated the same as a prospective employee
for purposes of the WPA. The question then becomes whether a spurned job applicant
can bring a claim under the WPA. We hold that the WPA, by its express language, has
no application in the hiring context. Thus, the WPA does not apply when an employer
declines to renew a contract employee’s contract.
Absent some express obligation stating otherwise, a contract employee has
absolutely no claim to continued employment after his or her contract expires.10 Rather,
the employer must weigh the pros and cons of engaging the applicant for a new
employment term, just as an employer must weigh the pros and cons of hiring a person in
the first place. And as with any employment decision, the employer can make its
decision for good reasons, bad reasons, or no reasons at all, as long as the reasons are not
unlawful, such as those based on discrimination.11 Therefore, in the context of the
present case, no relevant difference exists between a new job applicant and a current
contract employee seeking a new term of employment.
10
Bd of Regents of State Colleges v Roth, 408 US 564, 578; 92 S Ct 2701; 33 L Ed 2d
548 (1972).
11
See Mich Employment Relations Comm v Reeths-Puffer Sch Dist, 391 Mich 253, 259;
215 NW2d 672 (1974) (“[A]n employee may be terminated for a ‘good reason, bad
reason, or no reason at all’.”), quoting NLRB v Century Broadcasting Corp, 419 F2d 771,
778 (CA 8, 1969).
7
We then ask whether a prospective employee who attempts to blow the whistle on
a would-be employer may invoke the WPA’s protections. When interpreting a statute,
this Court must, of course, identify and give effect to the Legislature’s intent. The most
reliable indicator of the Legislature’s intent is the language of the statute itself. If the
statutory language clearly and unambiguously states the Legislature’s intent, then further
judicial construction is neither required nor permitted, and the statute must be enforced as
written.12
The relevant provision of the WPA, MCL 15.362, states the following:
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.
Drawing from the statutory language, this Court has identified three elements that a
plaintiff must demonstrate to make out a prima facie case that the defendant employer has
violated the WPA:
(1) The employee was engaged in one of the protected activities listed in the
provision.13
12
Whitman, 493 Mich at 311.
13
The protected activities listed in the act consist of reporting or being about to report a
violation of a law, regulation, or rule, or being requested by a public body to participate
in an investigation, hearing, inquiry, or court action. MCL 15.362. See also Chandler v
Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998); Brown v Detroit
Mayor, 478 Mich 589, 594; 734 NW2d 514 (2007).
8
(2) the employee was discharged, threatened, or otherwise discriminated against
regarding his or her compensation, terms, conditions, location, or privileges of
employment.14
14
Many courts, including this one, have at times grouped the collection of retaliatory acts
that an employer might take toward a whistleblower under the broader term “adverse
employment actions.” See, e.g., Whitman, 493 Mich at 313; cf. Chandler, 456 Mich at
399 (drawing the second element of a prima facie WPA claim directly from the statutory
language). But the way that the term has obtained meaning resembles the telephone
game in which a secret is passed from person to person until the original message
becomes unrecognizable. The term “adverse employment action” was originally
developed and defined in the context of federal antidiscrimination statutes to encompass
the various ways that an employer might retaliate or discriminate against an employee on
the basis of age, sex, or race. See Crady v Liberty Nat’l Bank & Trust Co of Indiana, 993
F2d 132, 136 (CA 7, 1993) (“A materially adverse change might be indicated by a
termination of employment, a demotion evidenced by a decrease in wage or salary, a less
distinguished title, a material loss of benefits, significantly diminished material
responsibilities, or other indices that might be unique to a particular situation.”). The
term “adverse employment action” appeared in this Court’s jurisprudence for the first
time in an age discrimination case, Town v Mich Bell Tel Co, 455 Mich 688, 695; 568
NW2d 64 (1997), though the statute at issue in that case, as here, did not contain the
term. Michigan courts then adopted the federal definition of “adverse employment
action” in the context of making out a prima facie case under Michigan’s Civil Rights
Act. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 362-366; 597 NW2d
250 (1999). Finally, the term crept into WPA cases. See Debano-Griffin v Lake Co, 493
Mich 167, 175-176; 828 NW2d 634 (2013); Brown v Detroit Mayor, 271 Mich App 692,
706; 723 NW2d 464 (2006), aff’d in relevant part, 478 Mich 589 (2007).
While the term “adverse employment action” may be helpful shorthand for the
different ways that an employer could retaliate or discriminate against an employee, this
case illustrates how such haphazard, telephone-game jurisprudence can lead courts far
afield of the statutory language. That is, despite courts’ freewheeling transference of the
term from one statute to another, the WPA actually prohibits different “adverse
employment actions” than the federal and state antidiscrimination statutes. So we take
this opportunity to return to the express language of the WPA when it comes to the
necessary showing for a prima facie case under that statute. Put another way, a plaintiff’s
demonstration of some abstract “adverse employment action” as that term has developed
in other lines of caselaw will not be sufficient. Rather, the plaintiff must demonstrate one
of the specific adverse employment actions listed in the WPA.
9
(3) A causal connection exists between the employee’s protected activity and the
employer’s act of discharging, threatening, or otherwise discriminating against the
employee.15
Significantly, as gleaned from the WPA’s express language, the statute only
applies to individuals who currently have the status of an “employee.”16 The Legislature
defined an “employee” in the WPA as “a person who performs a service for wages or
other remuneration under a contract of hire, written or oral, express or implied.”17
Noticeably absent from the WPA’s definition of “employee” is any reference to
prospective employees or job applicants. And indeed, the actions prohibited under the
WPA could only be taken against a current employee. Only an employee could be
discharged and only an employee could be threatened or discriminated against regarding
his or her compensation, terms, conditions, location, or privileges of employment. Thus,
the WPA simply excludes job applicants and prospective employees from its protections.
15
MCL 15.362 (stating that an employer may not take prohibited action against an
employee “because” of an employee’s engagement in a protected activity) (emphasis
added). See Chandler, 456 Mich at 399; Debano-Griffin v Lake Co, 493 Mich at 175
(2013).
16
We recognize that plaintiff was an employee at the time he engaged in protected
activity. Significantly, however, plaintiff makes no claim that his employment contract
was in any way breached or that he was subject to a specific adverse employment action
enumerated by the WPA during his contract term. Rather, plaintiff maintains that
because he engaged in protected activity during his contract term, he has a right under the
WPA to renewal of his contract. For the reasons set forth in this opinion, we reject
plaintiff’s claim.
17
MCL 15.361(a).
10
In this regard, the WPA stands in stark contrast to Michigan’s Civil Rights Act
(CRA). Whereas the WPA makes no mention of pre-employment conduct, the CRA
refers to an employer’s failure to hire or recruit someone:
An employer shall not do any of the following:
(a) Fail or refuse to hire or recruit, discharge, or otherwise
discriminate against an individual with respect to employment,
compensation, or a term, condition, or privilege of employment, because of
religion, race, color, national origin, age, sex, height, weight, or marital
status.[18]
The same is true of the federal Age Discrimination in Employment Act (ADEA)19 and
Title VII of the federal Civil Rights Act (Title VII).20 Each of these statutes provides
protection during the recruitment and hiring process; the WPA does not. Moreover,
whereas the WPA protects “employees,” the CRA, the ADEA, and Title VII protect the
broader class of “individuals” from prohibited employer actions.21 Thus, when
discussing the protections afforded prospective employees, any comparison to these
antidiscrimination statutes offers little help.22
18
MCL 37.2202(1) (emphasis added).
19
29 USC 623(a)(1) (stating that it shall be unlawful for an employer “to fail or refuse to
hire or to discharge any individual . . . because of such individual’s age”).
20
42 USC 2000e-2(a)(1) (stating that it shall be an unlawful employment practice for an
employer “to fail or refuse to hire or to discharge any individual . . . because of such
individual’s race, color, religion, sex, or national origin”).
21
MCL 37.2202; 29 USC 623(a)(1); 42 USC 2000e-2(a)(1).
22
This, of course, does not mean that courts interpreting the WPA should never look to
the CRA or federal antidiscrimination statutes for help. But in doing so, courts must be
cognizant of the textual differences that exist.
11
In light of this analysis, caselaw applying the antidiscrimination statutes to
contract renewals offers no insight into how the WPA should operate in the same
situation. For example, consider Leibowitz v Cornell Univ,23 a case extensively relied on
by Wurtz and the Court of Appeals majority, which involved a nontenured professor at
Cornell.24 The professor sued the school for violation of Title VII and the ADEA after it
declined to renew her fixed-term contract.25 The Leibowitz court held that “where an
employee seeks renewal of an employment contract, non-renewal of an employment
contract constitutes an adverse employment action for purposes of Title VII and the
ADEA.”26 But any reliance on Leibowitz for its application in the WPA context ignores
the logic that the court used to reach its conclusion. In fact, the court held that
nonrenewal of a contract fell within the antidiscrimination statutes’ reach precisely
because the statutes protect new job applicants.27 But the WPA has no application during
the hiring process. The floor underlying the Leibowitz court’s conclusion collapses when
23
Leibowitz v Cornell Univ, 584 F3d 487 (CA 2, 2009).
24
Id. at 492-493.
25
Id. at 495.
26
Id. at 501.
27
Id. at 500-501 (“It is beyond cavil that employers subject to the strictures of the ADEA
and Title VII may not discriminate on the basis of age or gender in deciding whether or
not to hire prospective employees. . . . Were we to accept defendants’ argument here, we
would effectively rule that current employees seeking a renewal of an employment
contract are not entitled to the same statutory protections under the discrimination laws as
prospective employees. . . . An employee seeking a renewal of an employment contract,
just like a new applicant or a rehire after a layoff, suffers an adverse employment action
when an employment opportunity is denied and is protected from discrimination in
connection with such decisions under Title VII and the ADEA.”).
12
attempting to apply Leibowitz to the WPA. While the ADEA and Title VII may apply in
the context of a contract renewal, that fact has no bearing on the application of the WPA
in the same situation.
This Court need not inquire why the Legislature chose to confine the WPA’s
protections by the bookends of employment while extending the CRA’s protections to the
hiring context. The Legislature elected to craft its legislation that way, and we decline to
second-guess the wisdom of the Legislature’s policy decisions.28 Indeed, any number of
policy justifications could be advanced for limiting the WPA’s application to current
employees.29 The mere fact that the Legislature chose to extend the CRA to the hiring
context is insufficient to extend the WPA that far too, particularly when the WPA’s
statutory language requires the opposite result.
28
See Petripren v Jaskowski, 494 Mich 190, 212 n 50; 833 NW2d 247 (2013).
29
For example, the Legislature might have considered the possibility of a situation like
that which has arisen under the Energy Reorganization Act (ERA), 42 USC 5851, a
federal whistleblowing statute that has been interpreted to protect prospective hires. A
single litigant, Syed Hasan, has sued at least a dozen companies that refused to hire him.
Hasan, who has raised nonmeritorious whistleblowing allegations in the past,
methodically seeks employment and informs the prospective employers of his
whistleblowing history. Then, when the companies decline to hire him, Hasan promptly
brings an action for violation of the ERA’s whistleblowing provisions. Despite his
unmitigated waste of judicial resources all around the country, this Court has not turned
up a single case in which Hasan prevailed on the merits. See, e.g., Hasan v US Dep’t of
Labor, 545 F3d 248 (CA 3, 2008); Hasan v US Dep’t of Labor, 400 F3d 1001 (CA 7,
2005); Hasan v US Dep’t of Labor, 298 F3d 914 (CA 10, 2002); Hasan v US Dep’t of
Labor, 301 F Appx 566 (CA 7, 2008); Hasan v Secretary of Labor, 90 F Appx 5, (CA 1,
2004); Hasan v US Dep’t of Labor, 102 F Appx 341 (CA 4, 2004); Hasan v US Dep’t of
Labor, 107 F Appx 184 (CA 11, 2004).
13
Lest today’s holding be misapplied, we find it necessary to mention several things
that this opinion does not say. While we hold that the WPA does not apply to decisions
regarding contract renewal, we emphasize that the WPA does protect employees working
under fixed-term contracts from prohibited employer actions taken with respect to an
employee’s service under such a contract. Indeed, the WPA’s definition of “employee”
expressly denotes a person working “under a contract for hire.” Thus, when an employer
discharges, threatens, or discriminates against a contract employee serving under a fixed-
term contract because the employee engaged in a protected activity, the WPA applies.
Today’s holding also has no bearing on at-will employees. While an at-will
employee cannot maintain any expectation of future employment, the employment
continues indefinitely absent any action from the employer.30 Thus, an at-will employee
does not need to reapply for the job for the employment to continue beyond a certain
date. Once hired, an at-will employee will not later find himself or herself in the same
position as a new applicant. A current at-will employee therefore stands squarely within
the WPA’s protections.31 An employee working under a fixed-term contract, on the other
hand, essentially becomes a new applicant when seeking a new term of employment. In
sum, we do not base our decision today on whether a person can maintain an expectation
of future employment but merely on whether the person falls within the WPA’s
protections. At-will employees do; contract employees seeking a new term of
employment do not.
30
McNeil v Charlevoix Co, 484 Mich 69, 86; 772 NW2d 18 (2009).
31
See Suchodolski v Mich Consol Gas Co, 412 Mich 692, 695 n 2; 316 NW2d 710
(1982).
14
The WPA’s language governs this case without any additional judicial
interpretation. The WPA simply does not extend to the pre-employment context.
Because we discern no legal difference between a contract employee seeking a new term
of employment and a new applicant, the WPA provides no protection to a contract
employee in that context. If a contract employee alleges only that the employer declined
to renew the employee’s contract, and not some action taken against the employee with
respect to an employee’s service under the contract, the WPA has no application.
IV. APPLICATION
Wurtz cannot show any entitlement to relief under the WPA. Wurtz alleges that
the District violated the WPA by deciding not to renew his contract. In other words,
Wurtz only alleges that the District took some action against him in his capacity as an
applicant for future employment. But as this opinion has shown, the WPA does not
apply to job applicants, nor does it apply to contract employees seeking renewal of their
contracts.32 The trial court properly granted summary disposition in defendants’ favor.
During Wurtz’s ten years as an employee—when he enjoyed the protections of the
WPA—he endured no action prohibited by the WPA. He was not discharged, threatened,
or discriminated against regarding his compensation, terms, conditions, location, or
privileges of employment. He served the District for the entire duration of his contract
32
Wurtz’s contract did not contain any renewal clause imposing some obligation or duty
on the employer to act. Thus, we need not address the effect that such a clause would
have on our analysis.
15
and received every cent and every benefit to which he was entitled. Thus, the District did
not engage in any action prohibited by the WPA.
Moreover, the circuit court did not prematurely grant summary disposition in
defendants’ favor. Generally, a circuit court should not grant summary disposition unless
no fair likelihood exists that additional discovery would reveal more support for the
nonmoving party’s position. Wurtz argues that additional discovery would have yielded
employment records showing that the District routinely renewed its employees’ fixed-
term contracts. Accepting this as true, no additional discovery would change the
outcome in this case. Wurtz worked for the District for the entirety of his contract and
suffered no adverse employment action in the context of that contract. That the District
may have renewed employees’ contracts in the past does not transform the expiration of
Wurtz’s contract into a prohibited action. No amount of additional discovery would have
yielded support for Wurtz’s position, and summary disposition was not premature.
During his time as an employee, Wurtz experienced no action prohibited by the
WPA and therefore has no recourse under the statute. As an applicant for future
employment, Wurtz was not hired. But the WPA does not cover prospective employees
whom an employer declines to hire, so Wurtz cannot claim relief under the statute.
V. CONCLUSION
The WPA does not provide Wurtz any recourse. The WPA does not apply to
prospective employees and it does not apply to contract employees seeking renewal of
their employment contract. Wurtz’s only allegation of a prohibited action occurred in the
context of his application for future employment, so his claim fails as a matter of law.
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Moreover, summary disposition was not premature because no amount of additional
discovery would show that Wurtz came within the WPA’s protections. Accordingly, we
reverse the Court of Appeals’ decision and remand this case to the circuit court for entry
of summary disposition in defendants’ favor.
Brian K. Zahra
Robert P. Young, Jr.
Stephen J. Markman
Mary Beth Kelly
Bridget M. McCormack
David F. Viviano
CAVANAGH, J., concurred in the result.
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