Preview:

STATE OF MICHIGAN COURT OF APPEALS

ROBERT SHAW, Plaintiff, and JOHN BEDO, Plaintiff-Appellant, v CITY OF ECORSE, Defendant-Appellee.

FOR PUBLICATION March 19, 2009 9:00 a.m.

No. 279997 Wayne Circuit Court LC No. 05-527571-NZ Advance Sheets Version

ROBERT SHAW, Plaintiff-Appellee, and JOHN BEDO, Plaintiff, v CITY OF ECORSE, Defendant-Appellant. No. 280693 Wayne Circuit Court LC No. 05-527571-NZ

Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ. PER CURIAM. These consolidated appeals arise out of plaintiffs' claims of adverse employment actions. In Docket No. 279997, plaintiff John Bedo appeals by leave granted the trial court order granting

-1-

defendant, city of Ecorse, summary disposition with regard to his claim under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. In Docket No. 280693, defendant appeals as of right the jury verdict in favor of plaintiff Robert Shaw on his claims of age discrimination and breach of contract and the trial court's order denying its motion for a new trial or remittitur. In Docket No. 279997, we reverse and remand for further proceedings. In Docket No. 280693, we affirm. I. Factual Background A. Facts in Docket No. 279997 Bedo worked for the city of Ecorse Fire Department from 1973 to 2006. In the 1990s, he was promoted to fire captain, and in 2003 and 2004 he temporarily served as fire chief. In mid2004, he returned to his position as fire captain. On June 9, 2006, Fire Chief Ronald French issued a command reducing the number of firefighters required to be on duty. Later that day, Bedo objected to the command in a department report, stating, "Per your Directive dated 6/9/06, I believe both Mayor Salisbury and Interim Chief French [have] jeopardized our Citizens' and Firefighters' safety. In the event of either the Citizens', Firefighters', or my injury or death, caused by these actions, I will hold you both responsible." On June 13, 2006, Bedo testified in a case initiated by former Fire Chief Ronald Lammers against defendant in which racial discrimination and breach of contract were alleged. Both Bedo and Fire Captain Arthur Andring were subpoenaed to testify on behalf of Lammers. On June 20, 2006, the jury returned a verdict in favor of Lammers and awarded him $600,000. According to Bedo and Andring, immediately after the trial, Fire Chief French and the former president of the firefighters' union told them that they were "in trouble" and that defendant would "go after them" because of their testimonies in the Lammers case. On June 23, 2006, Mayor Larry Salisbury filed departmental charges against Bedo, including: (1) conduct unbecoming an officer; (2) insubordination; (3) failing to follow a chain of command; (4) dissuading firefighters from performing their duties; and (5) criticism/ridicule. Police Chief George Anthony conducted disciplinary hearings on the charges on June 30, 2006, July 6, 2006, and July 14, 2006. The evidence presented at the hearings focused on the department report Bedo had submitted to Fire Chief French, but a substantial portion of the evidence suggested that Bedo was responsible for the death of a firefighter in the early 1990s. According to Bedo, he was "forced to retire" in late July 2006 because of the "stress created by the mayor's actions after [he] testified for the Plaintiff against the City of Ecorse in [the] Lammers trial." Defendant denied Bedo's requests for a "cash out," his pension, and to transfer pension plans. On July 21, 2006, Bedo filed suit against defendant, raising a claim under the WPA. Bedo claimed that defendant brought the departmental charges against him, subjected him to the disciplinary hearings, forced him to retire, and withheld his benefits because of his testimony at the Lammers trial. On August 15, 2006, Police Chief Anthony submitted his findings to Mayor Salisbury. On the basis of the evidence presented at the disciplinary hearings, he upheld four out of the five charges filed against Bedo and issued this decision: "Captain John Bedo should not be assigned

-2-

to any command or supervisory level position. I direct that Captain John Bedo be immediately demoted from the rank of captain to firefighter. In addition, I further direct that Captain Bedo undergo a physical and psychological examination to determine his continued fitness for duty." B. Facts in Docket No. 280693 Shaw was born on March 18, 1938. He worked for the city of Ecorse Police Department from 1968 to 2004. He became deputy chief in 1999. In 2001, when Shaw was 63 years old, defendant appointed him as police chief. In June 2004, John Clark, an attorney working on a contractual basis for defendant, sent a letter to Mayor Salisbury and the city council stating that under the city charter, "[a]ny Fireman or Policeman who attains the age of sixty (60) years shall be retired and pensioned as herein provided," that pursuant to that provision, Shaw should be "considered retired effective immediately," and that any further contractual relationship with Shaw would be in violation of the charter. Shaw responded to the letter, stating that he had no intention of retiring as police chief before August 2005 and that he disagreed with Clark's reading of the charter. Shaw explained, "Mr. Clark's opinion ignores the fact that you hired me [on a contractual basis] when I was over age 60. I believe that I will have claims against the City if I am wrongfully removed from my position." On August 2, 2004, the city council voted to relieve Shaw of his duties as police chief. The resolution stated that pursuant to the city charter, Shaw had been serving on a month-tomonth basis since November 2001 and that he served "at the pleasure of the Mayor and council." Council members Brenda Banks, Nathaniel Elem, Gerald Strassner, and Arnold Lackey voted to remove Shaw. Councilwoman Julie Cox voted against removing him. Councilwoman Theresa Peguese was not present for the vote. Later on August 2, Shaw received a telephone call from a coworker informing him that the city council had voted to remove him from his position. At the time, Shaw was in Nebraska for his grandson's brain surgery. More than two weeks later, on August 20, 2004, Shaw wrote the mayor and city council a letter, stating the following: It has been brought to my attention that I have been removed from my position as Chief of Police with the city of Ecorse even though I have received no official written or verbal notice to this effect. If this is indeed the fact, I am hereby requesting that I begin receiving my retirement benefits immediately. Since it is not my choice to retire at this time, I make this request under protest. Shaw subsequently requested "back pay," a "cash out" of leave already accrued, and a pension plan transfer. Defendant offered at least two pension plans to its employees: the City Charter Pension Plan (Charter plan) and the MERS (Municipal Employees Retirement System) plan. Retirees were entitled to 65 percent of their final average compensation (FAC) under the Charter plan and 80 percent of their FAC under the MERS Plan, based on a 36-month period selected by the retiree. Shaw was a member of the Charter plan at the time of his retirement and requested to be transferred to the MERS plan. He believed he could make such a transfer under defendant's agreement with the Police Officers Association of Michigan (the POAM contract). Defendant initially denied all of Shaw's requests. In April 2005, several months after Shaw gave his notice of retirement, the board of trustees for the city retirement system adopted a resolution

-3-

stating that Shaw was entitled to 50 percent of his FAC based on the period of its choosing. According to Shaw, he did not receive any pension benefits until May 2005. C. Procedural History In September 2005, Shaw filed suit against defendant, alleging age discrimination and breach of contract, among other claims. In July 2006, Bedo was added to Shaw's second amended complaint as a coplaintiff, raising his claim under the WPA. Thereafter, defendant moved for summary disposition of both plaintiffs' claims. The trial court denied defendant's motion with regard to Shaw's claims, but reserved ruling on Bedo's claims. Shaw's case proceeded to trial in June 2007. The jury returned a verdict in favor of Shaw. Defendant subsequently moved for a new trial or remittitur. The trial court denied the motion. In August 2007, the trial court heard additional oral arguments on defendant's motion for summary disposition of Bedo's claims and granted the motion. II. Bedo's WPA Claim Bedo argues that the trial court erred in granting defendant summary disposition with regard to his WPA claim. We agree. We review a trial court's decision on a motion for summary disposition de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, we consider all the evidence submitted by the parties in the light most favorable to the nonmoving party. Maiden, supra at 120. Summary disposition should be granted only where the evidence fails to establish a genuine issue regarding any material fact. Id. The interpretation and application of a statute involve questions of law that this Court reviews de novo on appeal. Lincoln v Gen Motors Corp, 461 Mich 483, 489-490; 607 NW2d 73 (2000). Bedo brought his whistleblower claim under MCL 15.362, which states: 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. "To establish a prima facie case under this statute, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff 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, 469 Mich 177, 183184; 665 NW2d 468 (2003). If a plaintiff is successful in establishing a prima facie case under -4-

the WPA, the burden shifts to the defendant to establish a legitimate business reason for the adverse employment action. Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 280281; 608 NW2d 525 (2000). Once the defendant produces such evidence, the plaintiff has the burden to establish that the employer's proffered reasons were a mere pretext for the adverse employment action. Id. at 281. In this case, the trial court found that Bedo failed to establish a prima facie case under the WPA because he was not engaged in protected activity. The trial court stated: This case is a Whistleblower's case or at least the one claim, and essentially the Whistleblower's Act provides any employer

Download ROBERT SHAW V CITY OF ECORSE.pdf

Michigan Law