One Court of Justice

In Packowski v. United Food & Commercial Workers Local 951, No. 282419 (published July 8, 2010), a divided panel of the Court of Appeals held that the federal Labor Management Reporting Disclosure Act, 29 U.S.C. § 401 et seq., preempted a union employee’s claim that the union breached his employment contract by firing him without just cause.  Writing for the majority, Judge Wilder explained that the Act’s purpose was to protect union democracy, which meant that an elected union president could choose employees who would reflect the president’s views and, correspondingly, fire those who did not.  Because the employee here did not dispute that he was a policy-implementing employee, the majority concluded that the Act protected the union official’s authority to fire him.  Accordingly, the majority held that recognizing a state-law cause of action based on the employee’s claim he could be terminated only for cause conflicted with the purpose the Act and was therefore preempted.

In dissent, Judge Beckering reasoned that when a union makes the decision to offer a just-cause employment contract to an employee, that contract can be enforced without violating the Act.  Holding otherwise allows unions to offer just-cause employment contracts even though the just-cause requirement would be unenforceable.  The relevant U.S. Supreme Court precedent, she continued, did not mean that state law could never restrict a union leader’s discretion to terminate an employee.

During the plaintiff’s employment with Kellogg, he received a disciplinary action that resulted in a 34-day suspension.  The plaintiff subsequently filed a grievance regarding this disciplinary action.  Dissatisfied with the grievance process, plaintiff then requested copies of his personnel records regarding the grievance procedure.  Kellogg obliged and provided plaintiff’s personnel record to his attorney.  But plaintiff also requested notes from grievance meetings or other notes that management kept, which Kellogg refused to provide.  Plaintiff then filed this lawsuit, claiming that Kellogg violated the Bullard-Plawecki Employee Right to Know Act (ERKA) by refusing to release the requested notes.  The trial court granted Kellogg’s motion for summary judgment, finding that the notes are exempt from disclosure.  On June 22, 2010, the Court of Appeals published its opinion in Wright v. Kellogg Co., No. 290130, affirming the trial court.  ERKA establishes an employee’s right to examine personnel records.  ERKA expressly defines “personnel record,” which includes a record that identifies an employee and “is used or has been used, or may affect or be used relative to that employee’s . . . disciplinary action.”  MCL § 423.501(2)(c).  However, the following is a statutory exception to the general definition of “personnel record”:  ”[r]ecords limited to grievance investigations which are kept separately and are not used for the purposes provided in this subdivision.”  MCL § 423.501(2)(c)(vi).  The Court of Appeals concluded that the requested notes fell within this exclusion.

On January 26, 2010, the Court of Appeals published its opinion in Weishuhn v. Catholic Diocese of Lansing, No. 287174.  In this case, a teacher at the Catholic St. Mary’s Elementary School filed a lawsuit asserting claims under the Civil Rights Act and Whistleblower Protection Act related to her termination.  The Defendants argued that these statutory claims were barred by the First Amendment, in the form of the “ministerial exception” which bars employment claims that inquire into the motivation of a religious institution’s contested employment decision regarding a “ministerial” employee.  The Court of Appeals affirmed the trial court’s factual conclusion that the teacher was, in fact, a ministerial employee.  The Court of Appeals focused on the nature and extent of the religious instruction she provided to her students, even during nominally secular classes like math, as well as her involvement in religious planning, proselytizing, and liturgical efforts.  Therefore, even though the teacher taught more math classes than religion classes at the time of her dismissal, she could still be considered a ministerial employee.  As such, the termination claims were properly dismissed.  In taking this action, the Court did note “[w]e recognize that it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters…However, to conclude otherwise would result in pervasive violations of First Amendment protections.”

In Foote v. Dow Chemical Co., No. 288294, the Michigan Court of Appeals recently reaffirmed that, where an employer’s handbook disclaims the intent to form a contract with its employees, the employee cannot enforce the employer’s policies in court.  In Foote, the plaintiff was fired after Dow learned that he had failed to disclose that he was having a consensual sexual relationship with a subordinate.  The plaintiff sued claiming that his termination violated Dow’s internal policies.  The Midland County Circuit Court granted summary disposition and held that the plaintiff was an at-will employee who could be terminated for any or no reason.  The Court of Appeals affirmed, concluding that the plaintiff could not distill a contractual right to continued employment from Dow’s employment handbook.

Disclaimer:  WNJ represented the prevailing defendant-appellee, The Dow Chemical Company, in this case.

On November 24, 2009, the Court of Appeals published a 2-1 opinion in Campbell v. Department of Human Services, No. 281592, affirming a judgment for plaintiff entered after a jury trial in a gender discrimination case.  Plaintiff’s gender discrimination claim against her employer was governed by a three-year statute of limitations.  MCL § 600.5805(10).  Defendant argued that evidence of discriminatory acts occurring outside the statute-of-limitations period should have been excluded from trial.  The Court of Appeals held that acts occurring outside the statute-of-limitations period, although not actionable, could nonetheless be used as background evidence to establish a pattern of discrimination in order to prove a timely claim.  The Court of Appeals explained that this evidence is subject to the rules of evidence and applicable law, and may be admitted under the trial court’s sound discretion.  The Court of Appeals emphasized that its holding does not resurrect the continuing-violations doctrine, abolished by the Michigan Supreme Court in 2005, under which a plaintiff could recover based on a prior act occurring outside the statute-of-limitations period.  Judge Murray’s opinion concurring in part and dissenting in part may be found here.

On September 30, 2009, the Michigan Supreme Court granted leave to appeal in the consolidated cases of Brightwell v. Fifth Third, Case No. 138920, and Champion v. Fifth Third, Case No. 138921.  The Court directed the parties to address two issues on appeal:  (1) whether the Court of Appeals correctly decided in Barnes v. IBM, 212 Mich. App. 223 (1995), that an alleged violated of the Elliott-Larsen Civil Rights Act (“CRA”) occurred only when the corporate decision affecting the plaintiff’s employment was made and that this Court’s analysis of MCL § 600.1629 from Gross v. General Motors Corp., 148 Mich. 147 (1995), should be applied to a discrimination case brought under MCL § 37.2801(2); and (2) whether the Court of Appeals correctly decided that this alleged violation occurred in Oakland County, where the decision to terminate the plaintiff was made, rather than in Wayne County where the plaintiff worked. Read more »

On July 21, 2009, the Michigan Supreme Court in McNeil v. Charlevoix County, No. 134437, unanimously held that the Northwest Michigan Community Health Agency (“NMCHA”), a multicounty district health department, had authority to proumlgate restrictions on smoking in public places and private places of employment that were more stringent than what the Michigan Clean Indoor Air Act (“MCIAA”) requires.  The Court also held 4-3 that it was authorized to enforce those regulations by creating a private cause of action against employers who retaliate against their employees for exercising their rights under those regulations.  The Court adopted and incorporated as part of its own opinion the reasoning of the court of appeals, which liberally construed Part 24 and Part 126 (MCIAA) of the Public Health Code (“PHC”) as granting such authority and concluded its restrictions on the general right to terminate at-will employees was consistent with the public policy exceptions set forth in Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692; 316 N.W.2d 710 (1982).  Justices Markman, Corrigan, and Young, concurring in part and dissenting in part, disagreed with the majority’s conclusions that the county had authority to create a private cause of action or that such an action was consistent with Suchodolski. Read more »

On May 28, 2009, the Michigan Court of Appeals, in a published per curiam opinion, decided that parties seeking to vacate an arbitration award involving a municipality and one of its unions have six years to do so before the statute of limitations extinguishes the claim.  The case, City of Ann Arbor v. AFSCME Local 369 (Case No. 283814), arose out of labor negotiations between the City and the Union.  The existing contract, which expired on June 30, 2001, contained a “me too” provision that required the City to provide the Union wage increases identical to any wage increases the City agreed to provide to other unions, such as police and firefighters.  The City/Union negotiations were not completed prior to the June 30, 2001, contract end so both parties agreed to “ground rules” that, in part, kept the existing contract in effect until the parties agreed to a new one.  Ultimately, the parties agreed to a new contract, which was ratified by the Union in October 2002. 

Read more »

On April 7th, the Court of Appeals published its opinion in Dykstra v. Department of Labor & Economic Growth, Unemployment Insurance Agency.  The Court upheld the payment of “trade readjustment allowance (TRA) benefits” to two plaintiffs, Tracey Dykstra and Robert Jordan, and held that statutory time limit applicable to enrollment in training programs tied to benefit eligibility does not apply to applications for waiver of the training prerequisite. Read more »

On Friday, the Michigan Court of Appeals issued a published opinion in the consolidated case of Shaw v. City Ecorse (Case Nos. 279997 and 280693).  One case involved the termination of the city’s police chief and the other involved the termination of a fire captain. 

 

The fire captain (Case No. 279997) claimed that he was improperly terminated under Michigan’s Whistleblower act, MCL § 15.362, for expressing opinions about the status of the city’s fire department.  The circuit court granted the city’s motion for summary disposition, but the court of appeals reversed, holding that at least some of the fire captain’s comments were protected by the act.

 

The police chief (Case No. 280693) claimed that he was the victim of age discrimination and a breach of contract when he was forced to retire by the city council.  The case went to a jury, which awarded the police chief $1.75 million in damages.  The city appealed the verdict, claiming that it should be subject to remittitur due to claimed insufficiency of evidence to support the amount of the non-economic damages award and the amount of the pension benefits award.  The court of appeals affirmed the decision in all respects.