Harris v. River Rouge Housing Commission

Filing 64

OPINION and ORDER granting in part and denying in part Defendant's 52 Motion for Summary Judgment. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CESILY D. HARRIS,
Plaintiff,
v.
RIVER ROUGE HOUSING
COMMISSION,

Case No: 2:11-cv-14030
Honorable Gerald E. Rosen
Magistrate Laurie J. Michelson

Defendant.
____________________________/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.

INTRODUCTION

Plaintiff Cesily D. Harris commenced this action on September 15, 2011, alleging
that her former employer, Defendant River Rouge Housing Commission (“RRHC”)
violated the Fair Labor Standards Act, the False Claims Act, the Michigan Whistleblower
Protection Act, and Michigan Public Policy when it discharged her because she was
threatening to expose RRHC’s plan to submit false reports to the U.S. Department of
Housing and Urban Development which overstated the rate of pay that she and some of
her coworkers were receiving.
On May 31, 2012, RRHC filed a motion seeking summary judgment in its favor
on all claims. Plaintiff has responded to Defendant's Motion, and Defendant has replied
to Plaintiff’s response. Having thoroughly reviewed and considered the parties' briefs
and supporting documents and the entire record of this matter, the Court has determined
1

that the pertinent allegations and legal arguments are sufficiently addressed in these
materials and that oral argument would not assist in the resolution of this motion.
Accordingly, the Court will decide Defendant’s motion “on the briefs.” See L.R. 7.1(f)(2).
This Opinion and Order sets forth the Court's ruling.

II.

PERTINENT FACTS

Plaintiff, Cesily D. Harris began working for the River Rouge Housing
Commission as a temporary administrative assistant in October, 2010. [Harris Dep., p
107]. Approximately six months later, she applied for a permanent position with RRHC
as its Capital Funds Program (“CFP”) Assistant. [Harris Dep. p. 112].

Ms. Harris

interviewed for the position with RRHC Executive Director Michael Sloan and
Commissioners Dwight Black and Rayfield Rogers. [Harris Dep. p. 114] [Sloan Dep. p.
62] During the interview, Ms. Harris was told that the CFP Assistant position entailed
assisting the Coordinator, Willie Burgess, with various tasks related to maintenance and
emergency maintenance, and “assisting him with any reports or paperwork that he
need[ed] [her] to assist him with,” [Harris Dep. p. 115] and that she would be working on
the five-year plan.
Approximately two weeks later, Ms. Harris was notified that she had been selected
for the CFP Assistant by Director Sloan, subject to approval by the RRHC Board, and
that she would be paid $15.00 per hour. [Sloan Dep. p. 64]. Ms. Harris was unanimously
approved by the Board on June 2, 2011, and she began working as a CFP Assistant
shortly thereafter. [Plaintiff’s Ex. H].
2

According to Ms. Harris, she was not told by Director Sloan or anyone else at this
or any other point before receiving her first paycheck as a CFP Assistant that there was a
‘probationary’ or ‘orientation’ period for new hires, or that her hourly wage would be less
than $15.00 per hour during her first ninety days or six months in the position. [Harris
Dep. pp. 125-26] The RRHC Personnel Policies and Procedures Handbook informs new
hires that there is a 90-day ‘orientation period’ for new hires, during which new hires are
evaluated, and after which they will become eligible for fringe benefits, but makes no
reference to reduced pay during this period. [Defendant’s Ex. 12, p. 11].
In her new position, Ms. Harris prepared and responded to correspondence,
answered telephones, and assisted tenants who were having issues with their homes.
[Harris Dep., p 176]. She was not responsible for preparing RRHC’s budget. [Plaintiff’s
Ex. F p. 2].
On approximately June 6, 2011, Mr. Sloan gave Ms. Harris a document that listed
the rate of pay and salary of each RRHC employee, and instructed her to input its
contents into a scheduling report. [Harris Dep., p. 147]. According to Ms. Harris, Sloan
told her: “This is the names, [sic] the pay rate and the salary. This is what I want you to
put in the report.” [Harris Dep., p 58]. Ms. Harris agreed to do so. [Harris Dep. p. 34].
The previous week, she had been told by Mr. Burgess that the scheduling report would be
“sen[t] out to HUD” and had shown her how to download blank forms from the HUD
website. [Harris Dep. p. 33].
As she had been instructed, Ms. Harris downloaded a blank scheduling report from
the HUD website and began copying the information from the document she’d been
3

given by Mr. Sloan into the downloaded form. The document listed Ms. Harris’ hourly
rate of pay as $15.00. [Plaintiff’s Ex. I]. Upon completion, Ms. Harris was to give the
completed scheduling report to Mr. Burgess. [Harris Dep. pp. 37-39].
Ms. Harris received her first paycheck for her position as a CFP Assistant on June
16, 2011. Ms. Harris had believed that she would be paid $15.00 per hour, but her first
check indicated that she was only being compensated $13.50 per hour. [Harris Dep., pp.
125-26] [Plaintiff’s Ex. 15].
Ms. Harris was upset because she was receiving less than she felt she was
promised and was concerned that she was being asked falsify reports which were to be
filed with a federal agency. That day, she spoke to Mr. Burgess and told him, “I can’t
report a falsified HUD report,” to which he responded, “I understand, let me check some
things out.” [Harris Dep. p. 53].
She also wrote a letter to Mr. Sloan with the subject line: “Employee
Grievance/Complaint.” The letter expressed her concern and disappointment regarding
her rate of pay. The letter reads: “Now if you told me that the pay rate for this position is
$15.00 an hour and that is what you are reporting to HUD, I would like to receive $15.00
as my pay rate. I do not understand why I have to wait 6 months for my increase, if there
is a policy on this I need a copy.” [Defendant’s Ex. 16] She dropped the letter off in his
mailbox or on his desk that morning, and he came to speak with her later that day about
the letter and the probationary period. [Harris Dep., pp.54-55] Mr. Sloan promised to
get Ms. Harris a copy of the policy stating that new hires are placed on probationary

4

status and have their hourly wage reduced. Ms. Harris did not bring up the allegedly
falsified report during that meeting.
When she had not received a copy of the policy by June 20, Ms. Harris drafted
another letter to Mr. Sloan on June 20, 2011 with “Grievance/Complaint” again as the
subject line. In this letter, Ms. Harris wrote: “I’m am [sic] writing because this is my
second request of a copy of the RRHC policy stating that each employee has to wait 6
months to get the pay that we were told we would receive upon hire [sic] for each
position. I need to meet with you Mr. Sloan or the Commission or I need to contact HUD
to get the situation rectified as soon as possible.” [Defendant’s Ex. 17].
Later that day, Ms. Harris did in fact contact HUD by emailing Ronald Wooster, a
Revitalization Specialist in HUD’s Office of Public Housing in Grand Rapids.
[Defendant’s Ex. 18]. In this email, Ms. Harris informed Mr. Wooster that she was being
paid less than she had been promised, asked him if he was aware of the probation policy,
and asked who she should speak with “to get this matter straightened out.” [Plaintiff’s Ex.
19]. The email makes no mention of the allegedly falsified reports.
On June 21, 2011 at around 11:00 a.m., Ms. Harris had a meeting with Mr. Sloan,
Mr. Rogers, and Mr. Black, during which she was invited to express her concerns.
[Plaintiff’s Ex. DD]; [Rogers Dep. p. 66]. Ms. Harris insisted that she be given a copy of
the probationary pay policy in writing. [Harris Dep. p. 188]. Mr. Rogers recalled that
during the meeting, “she explained how she was given payroll information to generate a
report to HUD and that she did not feel right filing a report stating that she would be paid
$15.00 per hour when she was not getting $15.00 per hour.” [Plaintiff’s Ex. HH]. Mr.
5

Sloan recalled that “we kept telling her that’s not her job duty to do the report so why are
you harping on reporting this to HUD and that’s not your job?" [Sloan Dep. pp. 123-24].
At the end of the meeting she was given a copy of the RRHC Handbook, which makes no
mention of reduced pay during a probationary or orientation period. Ms. Harris
acknowledges that during this meeting she did not specifically state that she was being
asked to falsify a report. [Harris Dep. p. 63].
There is some confusion regarding what happened next, 1 but according to Ms.
Harris, shortly after this meeting, Ms. Harris and Mr. Sloan had a private meeting in his
office. She told him that the policy she had been given had “nothing to do with the
percentage of pay being withheld. It has to do with work performance." He responded,
“Ms. Harris, we have been doing this for years, over 16-some years." [Harris Dep. p. 189].
She responded, “I don’t care what you’ve been doing for years. I need it in black and
white.” He asked, “Well, what if I can’t produce the document to you?” She told him that
if that were the case, “I would have to go over [his] head and contact HUD or whoever
else I need to contact to make sure that this is valid.” [Harris Dep. p. 189]. He told her,
“Well, then I’m going to have to terminate you.” Ms. Harris asked, “You’re firing me?
You’re asking me to leave?” Mr. Sloan said, “Yes.” [Harris Dep. p 189]. Ms. Harris then
grabbed her purse and left. [Harris Dep. p. 190].
According to a statement of the events written by Mr. Rogers on the day this
occurred, after Ms. Harris left Mr. Sloan’s office, Mr. Sloan told Mr. Rogers and Mr.

1

According to Mr. Sloan, Ms. Harris actually quit during the 11:00 meeting after he
refused to change her rate of pay. [Sloan Dep. p. 114-15].
6

Black that he believed that Ms. Harris had quit because she had walked out. In any event,
Mr. Sloan and Mr. Black agreed that Ms. Harris should be reprimanded for
insubordination, disrespectful conduct during the meeting and for having just left work.
[Defendant’s Ex. 22 p. 2]. Mr. Sloan told Mr. Black and Mr. Rogers that he was already
going to “sanction [Ms. Harris] for going outside the approved chain of command by
contacting HUD.” [Defendant’s Ex. 22 p. 2] [Black Dep. pp. 43-44]
Shortly after leaving, Ms. Harris was eating lunch at her sister’s house, when
Nancy Pittman, an employee of RRHC, called her and informed her that RRHC
employees were being told that she had quit. Ms. Harris decided to return to RRHC to
request a written letter of termination and to inform her former co-workers that she had
not quit, but rather, had been terminated. [Harris Dep. p. 191]
At around 2:30 that day, Ms. Harris returned to RRHC. Again, a meeting was
arranged between Ms. Harris, Mr. Sloan, and Commissioners Black and Rogers. [Harris
Dep., p 194, 196]. At the meeting, Ms. Harris informed them that she had “recorded
everything.” When Commissioner Black attempted to interject, Ms. Harris told him that
she wasn’t speaking to him. [Harris Dep. p. 196] [Sloan Dep. p. 119].
According to Ms. Harris, Mr. Sloan said “Get out. I’ll get your termination letter
and I’ll mail it.” Ms. Harris said “gentlemen have a good day,” then left. [Harris Dep. p.
195] [Plaintiff’s Ex. DD]. According to Mr. Sloan, though she had quit earlier that day, it
was during this meeting that he terminated her for being “outspoken, rude, [and] loud to
one of the commissioners and [him]self.” [Sloan Dep. p. 107].
Plaintiff thereafter initiated the instant lawsuit.
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III.
A.

DISCUSSION

APPLICABLE STANDARDS
Summary judgment is proper if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). As the Supreme Court has explained, “the plain language of Rule
56[] mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding a motion brought under Rule 56, the Court must view the evidence “in
a light most favorable to the party opposing the motion, giving that party the benefit of all
reasonable inferences.” Smith Wholesale Co. v. R.J. Reynolds Tobacco Co., 477 F.3d 854,
861 (6th Cir.2007). Yet, the non-moving party “may not rely merely on allegations or
denials in its own pleading,” but “must -- by affidavits or as otherwise provided in [Rule
56]-- set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2).
Moreover, any supporting or opposing affidavits “must be made on personal knowledge,
set out facts that would be admissible in evidence, and show that the affiant is competent
to testify on the matters stated.” Fed. R. Civ. P. 56(e)(1). Finally, “[a] mere scintilla of
evidence is insufficient” to withstand a summary judgment motion; rather, “there must be
evidence on which the jury could reasonably find for the non-moving party.” Smith
Wholesale, 477 F.3d at 861 (internal quotation marks and citation omitted).
8

B.

PLAINTIFF’S FAIR LABOR STANDARDS ACT CLAIM
In Count I of her Amended Complaint, Plaintiff alleges a claim of retaliation in

violation of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. (the “FLSA”). Section
15(a)(3) of the Act makes it unlawful for any person to discharge an employee for filing a
complaint of instituting a proceeding or testifying in a proceeding under or related to the
Fair Labor Standards Act. 29 U.S.C. § 215(a)(3). “To establish a prima facie case of
retaliation, an employee must prove that (1) he or she engaged in a protected activity
under the FLSA; (2) his or her exercise of this right was known by the employer; (3)
thereafter, the employer took an employment action adverse to her; and (4) there was a
causal connection between the protected activity and the adverse employment action.”
Adair v. Charter County of Wayne, 452 F.3d 482, 489 (citing Williams v. Gen. Motors
Corp., 187 F.3d 553, 568 (6th Cir. 1999)).” If the plaintiff establishes a prima facie case,
the burden then shifts to the defendant to set forth a legitimate, non-discriminatory reason
for the adverse employment action.” Id.
“To fall within the scope of the antiretaliation provision, a complaint must be
sufficiently clear and detailed for a reasonable employer to understand it, in light of both
content and context, as an assertion of rights protected by the statute and a call for their
protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335
(2011).
An employee’s assertion of statutory rights under the FLSA, not the filing of a
formal complaint, satisfies the first element. See E.E.O.C. v. Romeo Community Schools,
976 F.2d 985, 989 (6th Cir. 1992) (employee’s complaint to employer of unlawful sex
9

discrimination and allegation that they were “breaking some sort of law” satisfied first
element).
The Supreme Court recently passed upon the formality required to satisfy the first
prima facie element of an FLSA retaliation claim in Kasten v. Saint-Gobain Performance
Plastics Corp., 131 S.Ct. 1325 (2011). In that case the employee “repeatedly called the
unlawful [practice] to [his employer’s] attention in accordance with [the employer’s]
internal grievance-resolution procedure.” Id. at 1329. Plaintiff instructed his shift
supervisor that he believed the employer was engaged in conduct that violated the FLSA.
Id. at 1330. He told a human resources employee that he “was thinking about starting a
lawsuit” regarding the employer’s practice. Id. at 1330. He also told a human resources
manager and an operations manager that “he thought the [practice] was illegal and that
the company would lose in court.” Id. at 1330. The employee was disciplined and
ultimately discharged. The district court entered summary judgment against the employee
on his retaliation claim because it construed the section as only applying to written
complaints, Kasten v. Saint-Gobain Performance Plastics Corp., 619 F.Supp. 2d 608,
611-613 (W.D. Wis. 2008). The district court’s decision was affirmed on appeal. Kasten
v. Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838-840 (7th Cir. 2009). The
Supreme Court reversed, holding that the word “complaint,” in the FLSA refers to oral as
well as written complaints. Kasten, 131 S.Ct. at 1334-35.
The Court stated that “[t]o limit the scope of the antiretaliation provision to the
filing of written . . . complaints made to employers . . . would discourage the use of
desirable informal workplace grievance procedures to secure compliance with the Act.”
10

Id. at 1334. The Court also concluded that the “enforcement needs of [the FLSA] argue
for an interpretation of the word ‘complaint’ that would provide ‘broad rather than
narrow protection to the employee.’” Id. (quoting NLRB v. Scrivener, 405 U.S. 117, 122
(1972)).
“[A] complaint is “filed” when “a reasonable, objective person would have
understood the employee to have put the employer on notice that the employee is
asserting statutory rights under the Act.” Id. at 1335. The Court recognized that
employers must be given fair notice of an employee’s FLSA complaint to satisfy the
“complaint” requirement. “[T]he phrase “filed any complaint” contemplates some degree
of formality, certainly to the point where the recipient has been given fair notice that a
grievance has been lodged and does, or should, reasonably understand the matter as part
of its business concerns.” Id. at 1334. (quotations and alterations omitted). The Court
noted that the employee will generally be able to show his or her employer had fair notice
by showing that the employer fired her because she filed a complaint. Id. at 1334-35.
Plaintiff’s statements in her letters and during meetings with her superiors at
RRHC would have been sufficiently clear to put Defendant on notice that she was
alleging a violation of the FLSA if paying an employee less than what she was promised,
refusing to produce any written evidence documenting the policy that enables an
employer to pay its employee less than she was promised during a probationary period, or
asking an employee to help create an inaccurate form for submission to another agency
were violations of the FLSA.

11

Section 211(c), the subsection of the FLSA to which Plaintiff’s complaints related,
states:
Every employer subject to any provision of this chapter or of any
order issued under this chapter shall make, keep, and preserve such
records of the persons employed by him and of the wages, hours,
and other conditions and practices of employment maintained by
him, and shall preserve such records for such periods of time, and
shall make such reports therefrom to the Administrator as he shall
prescribe by regulation or order as necessary or appropriate for the
enforcement of the provisions of this chapter or the regulations or
orders thereunder.
29 U.S.C. § 211(c). The regulation proscribed by the Administrator of the Wage and
Hour Division requires employers to “preserve payroll or other records containing,” inter
alia, unexempted employees’ name, home address, sex, “[t]ime of day and day of week
on which the employee’ workweek begins,” “[r]egular hourly rate of pay for any
workweek in which overtime compensation is due,” “[h]ours worked each workday and
total hours worked each workweek,” “[t]otal wages paid each pay period,” and the
“[d]ate of payment and the pay period covered by the payment.” 29 C.F.R. § 516.2.
According to Plaintiff, she was engaged in an FLSA protected activity because
“the FLSA requires employees to ‘make, keep, and preserve’ truthful and accurate pay
records [and makes it] unlawful for an employer to violate the recordkeeping provision.”
[Plaintiff’s Motion, p. 22]. 29 U.S.C. §§ 211(c), 215(a)(5)). She maintains because her
complaint relates to defendant’s obligation to keep accurate pay records under [29 U.S.C.
§ 211(c)], it is entitled to the same protection as any other complaint filed under, or
related to, the FLSA, such as one regarding overtime or child labor.” Id., p. 23.
12

Plaintiff did not, and does not, claim that the HUD form she was being asked to
fill out and the document she was given by Mr. Sloan were the only documents that
RRHC had that could satisfy Section 211(c)’s requirement that employers keep records of
their employee’s wages. Plaintiff knew that this was not the case because the Earnings
Statement she had been given with her first paycheck as a CFP Assistant contained
accurate information about her hourly pay rate, which is what alerted her to the fact that
she was not being paid $15.00 per hour. [Plaintiff’s Ex. 7].
Nor did Plaintiff express any concern that the document she was being asked to
create was to be used as, or in place of, the report that Section 211(c) requires employees
to prepare in compliance with the standards set forth by the Administrator of the Wage
and Hour Division of the United States Department of Labor. Plaintiff did not express
concern that RRHC was not keeping accurate records of its employees’ rate of pay.
According to Plaintiff, she knew the report was being prepared for HUD because she had
been told that it was being prepared to be sent off to HUD. [Harris Dep. p. 33].
Plaintiff believes that the“[t]he Schedule was part of defendant’s Operating
Budget for the fiscal year ending June 30, 2012.” [Plaintiff’s Motion, p. 23]. Section
211(c) requires employers to make and preserve accurate records once wages are earned.
It does not prohibit employers from making rough estimates or erroneous, or even
deliberately false, projections of their operating budgets or their employees’ future wages.
Simply stated, nothing in the FLSA prohibits an employer from submitting nonconforming forms to the U.S. Department of Housing and Urban Development.

13

Because Plaintiff’s complaints did not allege a violation of the FLSA, and her
complaints were not sufficiently clear so as to put Defendant on notice that she was
alleging a violation of the FLSA, she has failed to make a prima facie case of a violation
of the FLSA’s antiretaliation provision.
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment on Count I of Plaintiff’s Amended Complaint.
C.

PLAINTIFF’S WHISTLEBLOWER’S PROTECTION ACT CLAIM
Defendant also seeks summary judgment on Plaintiff’s claim in Count II of her

Amended Complaint that Defendant violated the Michigan Whistleblowers Protection
Act (“WPA”) by terminating her. The WPA provides in pertinent part:
An employer shall not discharge ... an employee ... 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.
Mich. Comp. Laws § 15.362.
To prevail on a claim under the WPA, a plaintiff must demonstrate that: (1) she
was engaged in protected activity as defined by the Act; (2) the defendant discharged her,
and (3) a causal connection exists between the protected activity and the discharge.
Shallal v. Catholic Soc. Servs. of Wayne County, 455 Mich. 604, 610, 566 N.W.2d 571
(1997). Actions under the WPA are analyzed using the burden-shifting framework
utilized in retaliatory discharge actions under Title VII. Taylor v. Modern Engineering,
Inc., 252 Mich.App. 655, 662, 653 N.W.2d 625, 630 (2002).
14

In this case, the parties do not dispute that Plaintiff was discharged from her
employment with RRHC. Thus, the primary issues before the Court are (1) whether Ms.
Harris was engaged in protected activity under the WPA and, (2) assuming she was
engaged in such activity, whether there is a causal connection between her activity and
the discharge.
The Michigan Supreme Court defines an employee who is “about to report” a
violation or a suspected violation as one who “is on the verge of” doing so. Shallal, 566
N.W.2d at 575. “[T]he language of the Whistleblowers' Protection Act intentionally
reduces employee protection the more removed the employee is from reporting to a
public body.” Id. at 576. An employee who is “about to report” a violation of the law
receives the same level of protection as an employee who actually reports it to a public
body. Mich. Comp. Laws § 15.362.
In order to establish a claim under this prong, plaintiff must ultimately show: (1)
by clear and convincing evidence that she or a person acting on her behalf was about to
report, verbally or in writing, a violation or a suspected violation of a law of this state to a
public body, see Mich. Comp. Laws § 15.363(4); and (2) that the person who fired her
was objectively aware that she was about to make a report before she was fired. Kaufman
& Payton, P.C. v. Nikkila 200 Mich.App. 250, 257-58, 503 N.W.2d 728, 732 (1993). The
Michigan Supreme Court has recognized that the “clear and convincing evidence
standard” is “the most demanding standard applied in civil cases,” and a standard that has
been incorporated into Michigan statutory enactments. See In re Martin, 450 Mich. 204,
226-27, 227 n. 22, 538 N.W.2d 399 (1995).
15

Evidence is clear and convincing when it “produce[s] in the mind of the trier of
fact a firm belief or conviction as to the truth of the allegations sought to be established,
evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come
to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”
Evidence may be uncontroverted, and yet not be “clear and convincing.” ... Conversely,
evidence may be “clear and convincing” despite the fact that it has been contradicted. In
re Martin, 538 N.W.2d at 410 (quoting In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987)).
In Shallal, the Michigan Supreme Court found “clear and convincing evidence”
that the plaintiff was about to report her supervisor's abuse of alcohol and agency funds
where the plaintiff supported her claim with deposition testimony that she personally
confronted her supervisor with his violations. Shallal, 566 N.W.2d at 579. The plaintiff
also corroborated this testimony with entries from her personal calendar that identified by
date the people with whom she spoke about her desire to report her supervisor. Id. A
plurality of the court rejected the notion that a plaintiff should be required to say “magic
words” in order to reap the protections of the statute. It held that plaintiff's statement, “if
you don't straighten up . . . I will report [you],” especially coupled with the plaintiff's
other actions, established that the plaintiff was engaged in protected activity. Id.
Similarly, in an unpublished decision the Michigan Court of Appeals found that
the plaintiff, a dental hygienist, was “about to report” her employer's illegal billing
practices to the Michigan Department of Consumer and Industry Services where the
plaintiff submitted evidence that she had copied records, attempted to contact the
insurance hotline, and obtained a complaint form, before confronting her employer.
16

Fogwell v. Klein, No. 223761, 2001 WL 1134883 (Mich.Ct.App. Sept. 25, 2001), lv.
denied, 468 Mich. 864, 659 N.W.2d 227 (2003). The combination of actions and
communication with her supervisor were deemed sufficient to show that the plaintiff was
“on the verge” of reporting a violation of law. See id.
Defendant argues that Plaintiff cannot establish that she was engaged in protected
activity under the WPA because “her pre-termination communications with HUD and to
RRHC do not state that she was being asked to falsify an optional report.” If Plaintiff’s
sole concern had been contractual -- that she was not being paid what she had been
promised -- she would have likely contacted a lawyer or an employee of the Department
of Labor to report the discrepancy. However, Plaintiff took the initial step of contacting
HUD because it was to HUD she believed that RRHC was going to submit false reports.
According to Plaintiff, during her pre-termination meeting on July 21, she told Mr.
Sloan and Black, “You want me to do this report to HUD stating that I make $15 dollars
[sic] an hour.” “Why can’t I report my true salary?” “I’m not reporting 15 dollars to
HUD.”
According to Plaintiff, she was fired by Mr. Sloan immediately after she told him
that if he did not produce a written copy of the probationary policy, she “would have to
go over [his] head and contact HUD or whoever else [she] need[ed] to contact to make
sure that this is valid.” Further, Plaintiff did not demand a pay increase; she demanded a
written copy of the probationary policy, which she claims, and which can logically be
interpreted as demonstrating that she was attempting to gather evidence to bolster her

17

report to HUD, if RRHC would not relent in its demand that she prepare an inaccurate
report for submission to HUD
Plaintiff has provided sufficient evidence that she was about to report what she
suspected was illegal activity to HUD to enable a reasonable jury “to come to a clear
conviction, without hesitancy” that she was “on the verge” of making such a report.
A plaintiff making a WPA claim is also required to prove a causal connection
between her protected action and the subsequent discharge. West v. General Motors
Corp., 469 Mich. 177, 665 N.W.2d 468 (2003). “Summary [judgment] for the defendant
is appropriate when a plaintiff cannot factually demonstrate a causal link between the
protected activity and the adverse employment action.” West v. Gen. Motors Corp., 469
Mich. 177, 184, 665 N.W.2d 468, 472 (2003). “[A] temporal relationship, standing
alone, does not demonstrate a causal connection between the protected activity and any
adverse employment action.” Id. at 472-73. “Plaintiff must show something more than
merely a coincidence in time between protected activity and adverse employment action.”
Id.
According to Defendant, “Plaintiff . . . cannot establish causation because she
failed to provide objective notice to RRHC of a report or a threat to report a violation of
the law.” Plaintiff submits that she has provided sufficient evidence to establish causation
because: (1) “the timing between the protected activity and termination here is almost
instantaneous;” (2) Mr. Sloan told Plaintiff that he was firing her because she was going
to contact HUD; and (3) According to Mr. Rogers, Mr. Sloan told Mr. Rogers that he was
going to sanction Plaintiff for having contacted HUD.
18

Plaintiff made no reference to any particular statutory provision in her
communications with her superiors.

However, a reasonable jury could find that

Defendant had in fact received objective notice from Plaintiff that she suspected that
submitting a false reports to HUD violated the law, and that she intended to report this
violation unless Defendant allowed her to reduce the rate of pay listed on the HUD form
to accurately reflect her actual rate of pay or increased her actual rate of pay so that the
HUD form would be accurate.
Prior to her termination, Mr. Sloan acknowledged that he knew Plaintiff intended
to contact HUD, and knew her reason for doing so. “In that meeting all I remember is we
kept telling her that’s not her job to do that report so why are you harping on reporting
this to HUD?” [Sloan Dep. 123-24]. He also told Mr. Black that he intended to sanction
her for having contacted HUD. Mr. Sloan, and Plaintiff’s other superiors who were at the
meeting on June 21 prior to her termination, had been told directly that Plaintiff’s
concerns were not simply that she was being paid less than she felt she was promised, but
also that she was being asked to fill out an inaccurate report that she believed were going
to be submitted to HUD. Plaintiff remembers Mr. Sloan firing her immediately after she
told him that if he did not produce a written copy of the probationary policy, she “would
have to go over [his] head and contact HUD or whoever else [she] need[ed] to contact to
make sure that this is valid.”
While a temporal relationship alone is not sufficient to establish a causal
connection, the fact that Plaintiff and Defendant spent the entire afternoon discussing
whether or not she would report the false report to HUD and she was terminated as a
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result of her statement that she “would have to contact HUD,” shows more than a mere
coincidence regarding the timing of her termination and her engagement in protected
activity.
If credited by the jury, this could be sufficient to establish objective awareness on
the part of Defendant.
Defendant also argues that “Plaintiff cannot establish a causal connection because
Michigan law requires that a whistleblower's primary motivation be a desire to inform the
public, not to act in self interest.” In support, Defendant cites Whitman v. City of Burton,
in which the Michigan Court of Appeals stated: “[W]hen considering a retaliation claim
under the act, a critical inquiry is whether the employee acted in good faith and with a
desire to inform the public on matters of public concern.” Whitman v. City of Burton, 293
Mich.App. 220, 230, 810 N.W.2d 71 (2011). The Michigan Supreme Court has granted
leave to appeal the Michigan Court of Appeal’s decision in Whitman, and has specifically
invited the parties to brief whether Shallal “correctly held that the primary motivation of
an employee pursuing a whistleblower claim must be a desire to inform the public on
matters of public concern, as opposed to personal vindictiveness.” Whitman v. City of
Burton, 491 Mich. 913, 811 N.W.2d 490 (2012).
In Shallal, the vindictiveness and bad faith of the employee precluding relief under
the WPA was an attempt to extort her employer. Shallal, 566 N.W.2d at 579. In
Whitman, the Michigan Court of Appeals held that the bad faith precluding relief
involved the employee “withholding his accusation until after he accumulated thousands
of dollars worth of sick and vacation time . . . [then] stockpiling his hours and, when most
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personally advantageous, threaten[ing] legal action if defendants did not pay [him] for
them.” Whitman, 810 N.W.2d at 76.
While it is unclear whether the Michigan Supreme Court’s statement in Shallal
that “[t]he primary motivation of an employee pursuing a whistleblower claim must be a
desire to inform the public on matters of public concern, and not personal
vindictiveness,” Shallal, 566 N.W.2d at 579 (citations omitted)2, remains good law, there
is a genuine issue of fact regarding what Ms. Harris’s primary motivations were and
whether she was engaged in the kind of vindictiveness that precludes protection under the
WPA.
Plaintiff contends that her “central concern was public fraud,” and seeks to support
this assertion with her June 16 letter to Mr. Sloan in which she wrote, “Now if you told
me that the pay rate for this position is $15.00 an hour and that is what you are reporting
to HUD, I would like to receive $15.00 as my pay rate.” In her deposition, Plaintiff stated
that she used this language “[t]o emphasize that it would be fraudulent” for defendant to
falsely report to HUD. [Harris Dep. pp. 140-41]. Because [t]he evidence must be viewed
in a light most favorable to the party opposing the motion, giving that party the benefit of
all reasonable inferences,” and a rational jury could believe Plaintiff’s testimony
2

See, e.g., Whitman, 491 Mich. 913, 811 N.W.2d 490; Morris v. Aon Serv. Corp., 1014620, 2011 WL 5864757 (E.D. Mich. Nov. 22, 2011) reconsideration denied, 10-14620,
2011 WL 6217439, *6 (E.D. Mich. Dec. 14, 2011) (“Although the case law is not
uniformly clear, it appears that “the WPA does not require that the plaintiff possess any
particular intent when making her report.” There is no rule from Burton…that a WPA
claim fails if the plaintiff intends to “advance his own financial interests” rather than
“inform the public on a matter of public concern.”) (quoting Johnson v. County of
Jackson, 2003 WL 22113958, at *3 (Mich.Ct.App. Sept. 11, 2003))).
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regarding her subjective motivations and could also reasonably construe ambiguities in
statements made by Plaintiff in letters and meetings, summary judgment is inappropriate
on this issue. Smith Wholesale Co., 477 F.3d at 861.
Whatever Plaintiff’s motivations were, Defendant has made no showing that
Plaintiff was acting vindictively or in bad faith. The plaintiffs in Shallal and Whitman
withheld their accusations until an opportune time so that they could personally profit.
Here, upon discovering the discrepancy between her actual rate of pay and the rate of pay
she was asked to input on the HUD form, Plaintiff immediately and continuously sought
to resolve the matter.

Additionally, Plaintiff’s attempts to identify other RRHC

employees who were also being paid less than they had been told, indicated her desire to
create accurate reports that would be filed with HUD or to expose a larger fraud if the
false reports were filed. [Harris Dep. p 142] Plaintiff’s relentless pursuit of a written
statement of the probationary policy may also be interpreted by a jury as supporting
Plaintiff’s explanation that she did not report the alleged fraud sooner because she was
attempting to build a larger case against RRHC.
For all of these reasons, summary judgment will be denied on Plaintiff’s
Whistleblower’s Protection Act claim.
D.

PLAINTIFF’S FALSE CLAIMS ACT CLAIM
Plaintiff also alleges a federal whistleblower’s claim under the False Claims Act

(FCA).

A person who presents false claims for payment to the federal government

violates the False Claims Act (“FCA”). 31 U.S.C. § 3729. The FCA also “protects
employees who pursue, investigate, or otherwise contribute to an action exposing fraud
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against the government.” Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir.
2003). The FCA’s antiretaliation provision provides in pertinent part:
Any employee, contractor, or agent shall be entitled to all relief necessary
to make that employee, contractor, or agent whole, if that employee,
contractor, or agent is discharged, demoted, suspended, threatened,
harassed, or in any other manner discriminated against in the terms and
conditions of employment because of lawful acts done by the employee,
contractor, agent or associated others in furtherance of an action under this
section or other efforts to stop 1 or more violations of this subchapter.
31 U.S.C. § 3730(h):
To establish a claim for retaliatory discharge under this section, “a plaintiff must
show (1) he engaged in a protected activity; (2) his employer knew that he engaged in the
protected activity; and (3) his employer discharged or otherwise discriminated against the
employee as a result of the protected activity.” Yuhasz, 341 F.3d at 566 (citing McKenzie
v. BellSouth Telecomm., Inc., 219 F.3d 508, 513-514 (6th Cir. 2000)). Protected activity”
is defined as “activity which reasonably could lead to a viable FCA action,” although an
employee need not undertake the activity with actual knowledge of the FCA. McKenzie,
219 F.3d at 516. “A plaintiff must only allege activities “that would have given [the
defendant] reason to believe that she was contemplating a qui tam action.” U.S. ex rel.
Marlar v. BWXT Y-12, L.L.C., 525 F.3d 439, 449 (6th Cir. 2008).
Protected activity should be interpreted broadly. McKenzie, 219 F.3d at 515. The
directive to “broadly construe” the plaintiff's “protected activity,” however, does not
eliminate the necessity that the actions be reasonably connected to the FCA, which was
designed to encourage and protect federal whistleblowers.” Id.

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In Marlar, the Sixth Circuit held that an employee who “pleaded she repeatedly
objected to her superiors about” inaccurate records, which were being used to defraud the
federal government was engaged in FCA protected activity. Marlar, 525 F.3d at 350.
There, the employee told her employer that she believed it was “receiving large incentive
payment payments under its contract with” the Department of Energy by “underreporting
its employees work-related injuries and illnesses.” Id. at 350. Plaintiff had stated a claim
under the FCA by alleging that “she observed purportedly fraudulent activity and
confronted her employer about it,” connected her complaint (underreporting) to concern
about fraud on the government, and “because she informed [her employer] of her
concerns, she was terminated.” Id.
Here, Plaintiff was told that reports that she was asked to fill out would be
submitted to HUD. She recognized when she received her first paycheck that the form
she was being asked to create was inaccurate. She complained several times to her
superiors that she was being asked to participate in the creation of an inaccurate
document, which were to be submitted to HUD. Defendant now argues that the
inaccurate Schedule was never sent to HUD. However, it is unclear if Plaintiff’s actions,
including fear that Plaintiff would bring this action, are the reason this is true.
As discussed above, Plaintiff makes a plausible claim that she was terminated
because of her complaints regarding Defendant’s preparation of false documents, which it
intended to submit to HUD. Plaintiff’s activity in this case, if believed, reasonably could
have lead to a viable FCA action. She alleges that she brought this to Defendant’s
attention and was fired because of it. Plaintiff may proceed with her claim under 31
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U.S.C. § 3730(h). Therefore, Defendant’s motion for summary judgment will be denied
on this claim, as well.
E.

PLAINTIFF’S MICHIGAN PUBLIC POLICY CLAIM
Lastly, Plaintiff alleges a common law claim for violation of public policy.

“Michigan courts have recognized a “public policy” exception to the general rule that an
at-will employee may be terminated at any time for any reason.” Humenny v. Genex
Corp., 390 F.3d 901, 907 (6th Cir. 2004) (citing Suchodolski v. Mich. Consol. Gas Co.,
412 Mich. 692, 316 N.W.2d 710, 711 (1982). However, “[a]s a general rule, the remedies
provided by statute for violation of a right having no common-law counterpart are
exclusive, not cumulative.” Dudewicz v. Norris-Schmid, Inc., 443 Mich. 68, 80, 503
N.W.2d 645, 649 (1993) disapproved on other grounds by Brown v. Mayor of Detroit,
478 Mich. 589, 734 N.W.2d 514 (2007). “A public policy claim is sustainable...only
where there also is not an applicable statutory prohibition against discharge in retaliation
for the conduct at issue.” Dudewicz, 443 Mich. at 80; 503 N.W.2d at 650. “Plaintiff
recognizes that when a statute provides relief for retaliatory discharge, a public policy
claim fails.”
Because the same facts giving rise to Plaintiff’s public policy count also give rise
to potential violations of the Whistleblowers Protection Act and the False Claims Act,
Plaintiff’s Michigan Public Policy Claim is preempted.

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IV.

CONCLUSION

For all of the reasons set forth in this Opinion and Order,
IT IS HEREBY ORDERED that Defendant River Rouge Housing Commission’s
May 31, 2012 Motion for Summary Judgment is GRANTED IN PART and DENIED IN
PART. Specifically, Defendants’ Motion is GRANTED on Plaintiff’s claims in Counts I
and III for violation of the Fair Labor Standards Act and Michigan Public Policy.
However, Defendant’s Motion is DENIED with respect to Plaintiff’s claims under the
Michigan Whistleblower Protection Act and the False Claims Act (Counts II and IV of
Plaintiff’s Amended Complaint). The case will proceed to trial only on those claims.
SO ORDERED.

Dated: March 29, 2013

s/Gerald E. Rosen
GERALD E. ROSEN
CHIEF, U.S. DISTRICT COURT

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, March 29, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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