TOV.WrongfulTermination&Discrimination

Court upholds summary disposition against woman alleging Whistleblower Protection Act violation, refusing to apply WPA to contract renewal

The Plaintiff was improperly suspended in October of 2013 by the MGH Family Health Center, after engaging in protected activity.  She was notified two weeks later that her annual contract would not be renewed on January 1 of 2014.  She filed a lawsuit on February 19 of that year, arguing that she was wrongfully terminated for engaging in protected activity.  The trial judge summarily dismissed her claim, holding that while the Whistleblower Protection Act applies to preclude termination of employment, it does not protect an employee's right to contract renewal.  The judge also held that her 90 day limit on filing suit commenced when she was notified of the suspension--and that no new violation or time limit resulted from the notice of non-renewal.  With that interpretation, her February lawsuit was not filed within the 90-day limit.

The Court of Appeals affirmed the lower court's holding and its analysis.  It held that Plaintiff Bradford's rights under the WPA were limited to acting within 90 days of her wrongful suspension, and that she had no WPA rights arising out of the non-renewal.

Court summarily dismisses Commission on Aging Executive Director's claim that she was discharged in violation of Open Meetings Act

In Carroll v. Montmorency County Commission on Aging, the plaintiff sued her former employer, arguing that she was discharged improperly after serving as the Executive Director of the Agency.  She was fired after a closed meeting and contended that if you properly counted the subsequent open meeting votes of Commission Members who had not previously resigned, the termination was not approved. 

The trial judge held that she failed to state an effective discharge claim and Carroll appealed.  The Court of Appeals affirmed the summary disposition, finding that the properly-counted votes resulted in the plaintiff's termination by a 3-2 vote, and that any alleged Open Meeting Act violation was procedural and later corrected, and would not change the outcome of the termination vote.

Court rejects Michigan Compensation Appellate Commission denial of unemployment to woman who was too sick to work

Aisha Nichols was fired because she called in sick once too often.  Her employer, Auto Club Services, Inc., had a zero tolerance "no fault" policy relating to excessive absenteeism.  When she experienced a "thyroid storm" and called in sick, she was fired.  She subsequently applied for unemployment.  The employer stipulated that her absences were medically related, but argued that they constituted "misconduct" that rendered her ineligible for unemployment benefits under the more restrictive standard adopted by the Republican majority in the Legislature. 

A Republican-appointee Administrative Law Judge agreed and the Republican-dominated MCAC affirmed that decision.  She appealed and the Court of Appeals overturned the holding.  The appellate judges noted that a "claimant's tardiness or absences cannot support a finding of statutory misconduct unless it is determined that they are without good cause."  On that basis, her claim was remanded for further proceedings, where the employer will be required to show that Nichols' absence was willful.  The judges cited precedent to the effect that "tardiness or absences resulting from events beyond the employee's control or which are otherwise with good cause cannot be considered conduct in willful or wanton disregard of the employer's interests."

Court denies school superintendent's objections to arbitrator's decision about evidence

After he was fired by the Portage Pub Schools, the Superintendent took the District to arbitration.  He was fired for having a prohibited sexual relationship with an employee whom he had hired.  He argued that the termination violated his employment contract and invoked the contract's arbitration clause.  Up until the arbitration, the employer claimed privilege as to an investigator's report into the Superintendent's relationship and refused to share it with the Superintendent.  At the hearing, the school district withdrew it's claim of privilege at the last moment, so that it could present the testimony of the investigator as evidence against the terminated employee.

The Superintendent argued that refusing to allow him access to the Report in advance of the hearing was a violation of due process and that the arbitrator further erred in deeming the investigator an "expert" regarding credibility.  The employee also argued that the School District interfered with his right to a fair decision by denying him access to other employees who would have supported his claim that the District had "previously tolerated sexual relationships between employees."  The Court held that an arbitrator is not bound by any rules of evidence and was entitled to make his own decision about relevance and materiality.

Court majority allows employer hospital to use peer review "as sword and shield," admitting only its own summary but not report

Judge Clay of the Sixth Circuit Court of Appeals, filed a strident Dissent, after two judges on his panel upheld the summary disposition of a discrimination/wrongful termination suit involving a security guard.  The merits of the case were never evaluated because the trial judge granted summary disposition.  Judge Clay filed a fairly long dissent, detailing the violations of civil procedure rules inherent in the trial judge's decision and its affirmance.

Judge Clay's primary objection related to the court allowing Saint Joseph Mercy Hospital Oakland to admit into evidence it's redacted summary of a Peer-Review Report which it would not turn over, claiming privilege.  Judge Clay pointed out that no Court in America allows a litigant to use a privilege both as "sword and shield," admitting into evidence only the selected parts the litigant chooses. He also pointed out that since no Michigan Court has applied the health care "peer review" privilege to employess who aren't doctors or nurses, the lower court erred in assuming that it should apply.

Judge Clay objected to allowing the Hospital to make "tactical use" of the partial content of the Report without making it available in discovery, particularly given that even the selected parts that the Hospital offered into evidence were not clearly supportive of the Hospital's claims.

"Just cause" for firing is deemed to be hollow promise where employer reserves discretion to determine cause

In Brugger v. City of Holland, two Court of Appeals judges upheld the summary disposition of the Plaintiff's wrongful discharge claim, even though the City's employment handbook stated that employees would be discharged only for "just cause."  Brugger was terminated after filing a harassment report and filed suit, arguing that the City managers lacked just cause to terminate him.

The City argued that since the employment handbook also stated that it would have sole discretion to assess "just cause," Brugger had no contractual right to dispute the City's decision.  The Court of Appeals' Republican majority concluded that the contract term "just cause" was a meaningless, hollow promise which did not bind the City and that the court would not "second guess" City Managers' assessment of cause.  The dissenting judge, Elizabeth Gleicher, disagreed and would hold that every term in the contract should be given effect; therefore, the Court should be obligated to assure that the City had made a good faith analysis of "just cause."

Nurse wins the right to appeal her termination

The Hillsdale County Medical Care and Rehabilitation Center fired Peggy Wells, an LPN with 19 years experience, after it decided she "used inappropriate and unrespectful" language toward a nurse aide in the presence of a resident, and was unduly abrupt in telling another resident that the resident was "not allowed to interrupt her" while she was dispensing medication to another resident.  The Care Facility "self-reported" an incident of abuse to the State, and then used that report to defend Wells' arbitration demand through her union.

An arbitrator found that the termination was inappropriate for three reasons:  1.  Wells single instance of impatience was at worst rude and certainly not abuse; 2. it resulted from a fatal procedural error, in that Wells was never advised of the State institutional "report" or allowed to respond to the allegations or appeal any findings; and 3.  the termination violated the facility's "progressive, corrective discipline" policy and denied Wells "fundamental due process."  The facility then sued in Circuit Court to overturn the arbitrator's decision.

Court holds that successor employer is not bound by employer's arbitration agreement or result

Michael Rogensues was employed by Weldmation, Inc., and had executed an arbitration contract with the company.  His employment was terminated and the company refused to pay the stipulated severance pay, so he demanded arbitration.  In the interim, Weldmation sold its assets to Kramer International, Inc.  In the contract, Kramer did not assume any of the liabilities of Weldmation.

The arbitrator ruled in Rogensues' favor and awarded him damages.  When he sought to enforce the arbitration result against the two companies, however, Weldmation was uncollectible, apparently, and Kramer argued that:  it was not bound by the predecessor's arbitration agreement; it had not assumed any of Weldmation's liabilities, and Rogensues' correspondence with the former CEO of Weldmation, now a consultant of Kramer, did not constitute adequate notice of the pendency of the arbitration proceeding.

The Court of Appeals agreed with Kramer on all three counts.  Rogensues was unable to enforce the arbitration agreement against Kramer.  If the arbitration had gone in Kramer's favor, we wonder if the Court would have so readily concluded that the arbitration agreement was not an "asset" of the successor corporation and therefore available to Kramer and binding on Rogensues?

Michigan Supreme Court reverses lower court, overturns decision in favor of police chief against employer

Kenneth Costella sued the Taylor Police & Fire Retirement System and City of Taylor, aruging that it was computing his retirement improperly.  The dispute focused on whether a $48,000,00 severance payment should influence the calculation.  The Court of Appeals majority had concluded that "Costella justifiably relied on the representations of various officials" that the sum would be included in his retirement package computation. 

This week the Supreme Court overturned the Court of Appeals and reinstated summary disposition for the employer.  It held, in a one paragraph opinion, that the defendant's final decision refusing to include the disputed amount in Costella's retirement calculation was "not contrary to law, was not arbitrary, capricious, or a clear abuse of discretion."  In other words, the City's decision wasn't outrageously wrong, the employee loses.

Building Inspector's civil rights and whistleblower protection claims are examined

Vijay Parakh sued the Harrison Township in Macomb County, arguing that he was disciplined in retaliation for doing his job.  He first brought a grievance under the Collective Bargaining Agreement and won reinstatement of his position.  Because that did not provide complete relief, however, he filed the instant action in Circuit Court.  The Defendants secured summary disposition of his action by claiming he failed to exhaust his administrative remedies and on other grounds.  He appealed.

The Court of Appeals panel pointed out that Parakh achieved all that he could under the CBA grievance procedure, and therefore a genuine issue of material fact remained with regard to whether the Plaintiff had exhausted his procedural rights.  The Court also pointed out that the Defendants had actually waived this defense by failing to raise it on a timely basis.