Solano-Reed v. The Leona Group LLC et al

Filing 61

OPINION AND ORDER granting 46 Motion for Summary Judgment. Signed by District Judge Marianne O. Battani. (BThe)

UNTIED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HELENA SOLANO-REED a/k/a
HELENA SOLANO,
Plaintiff,
CASE NO. 11-14245
v.
HON. MARIANNE O. BATTANI
THE LEONA GROUP, LLC, et al.,
Defendants.
_________________________________/
OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendants’ Motion for Summary Judgment.
(Doc. 46). The case involves a dispute between Plaintiff, Helena Solano-Reed, and her
supervisors, Defendants Javier Garibay and Juan Martinez, regarding the testing of
11th graders at Cesar Chavez Academy High School (“CCAHS”), owned and operated
by Defendant The Leona Group, LLC. For the reasons stated below, the Defendants’
motion is GRANTED.
I.

STATEMENT OF FACTS
A.

Background

Plaintiff, Helena Solano-Reed, worked as a guidance counselor from 2006 until
2011 at CCAHS. (Doc. 46 at 1). CCAHS is a public charter school owned and
operated by The Leona Group. Solano-Reed was hired on an annual basis, with a
renewal of her contract each year until employment ceased in mid - 2011. (Compl. at ¶
15-18). She received exemplary performance reviews, and was given a raise after the

2010-11 school year. (Id. at ¶ 20). Juan Martinez is the principal of CCAHS and Javier
Garibay is the Regional Vice President of The Leona Group.
B.

MME Testing Protocol and Solano-Reed/Martinez Relationship

The State of Michigan requires that all 11th graders take the Michigan Merit
Exam (“MME”) in order to comply with the No Child Left Behind Act (“NCLBA”). (Doc.
46 at 1; Doc. 54 at 1). CCAHS receives federal and state funds for its compliance.
According to Chris Janzer, Accountability Specialist with the MDE, charter schools have
the discretion to set criteria identifying which students qualify as 11th graders. (Doc. 46
Ex. B, ¶ 6, 7). At CCAHS, those students with 12 or more credit hours were considered
11th graders eligible to test, and were administered the MME. (Doc. 46 at 2).
Beginning in early 2010, Defendants prepared to administer the MME to only a
portion of students in 11th grade; those who completed 12 credit hours. Some students
were labeled as juniors, but had completed only 10 or 11.5 credit hours. In February
2010, Solano-Reed attended a conference with officials from the MDE and voiced her
concern about the decision not to test all students in 11th grade. (Compl. at ¶ 30-31).
She asserts that MDE officials “noted . . . this was improper.” (Id. at ¶ 32).
In March 2010, Solano-Reed told Martinez that MDE officials believed the testing
protocol to be improper. (Id. at ¶ 33). However, Martinez proceeded as originally
planned. That summer, Solano-Reed was not asked to direct the summer school
program. (Id. at ¶ 35). Later in September, she sent out a school-wide email directing
teachers to avoid sending students to the guidance office during the first week of
school. (Doc. 46 Ex. H). Martinez responded via email, voicing his displeasure with
such a policy. (Id.) In a November meeting with Martinez, Solano-Reed again objected

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to the testing protocol. A series of emails between Martinez and Solano-Reed in
December indicates she failed to provide Martinez with information regarding seniors
eligible to graduate, and that Martinez was “very let down” by the overall performance of
her and her co-employee. (Id. at Exs. I, J, K).
In January of 2011, Solano-Reed objected to the testing procedures again via
email. (Compl. at ¶ 49). However, the relationship between her and Martinez further
deteriorated after she sent a memo characterizing some of her job responsibilities as
“clerical.” (Id. at Ex. L). Martinez then sent an email to Solano-Reed requesting her to
provide information relating to her job responsibilities along with proof that her tasks are
“clerical” in nature. (Id. at Ex. M, p. 4 of 8). Two days later, she sent Martinez a lengthy
email describing that she felt “harassed, intimidated and stressed out by [Martinez’s]
hostile treatment of [her].” (Id. at Ex. M, p. 2 of 8). She also made it known that
“[s]everal of my dearest friends are attorneys and I have spoken with them about my
work situation and per your request, I will immediately begin to document all of the work
that I do . . . .” (Id.) After a January 27 meeting with Javier Garibay involving the email
exchange, Solano-Reed wrote a memo detailing her encounter. (Id. at Ex. U). In it she
states,
“I told Mr. Gariby [sic] and Ms. Griggs that I felt targeted, harassed and
intimidated by Mr. Martinez and that no matter what I did, I could not make
him happy. As such, I was under a constant bombardment of e-mails from
Mr. Martinez demanding more and more work. The final culmination
resulted in my return e-mail where I voiced my feelings of harassment and
intimidation after he sent a secretary into my office with a bright pink high
lighted memo that he had previously sent to me via e-mail.”
(Id. at 1). Solano-Reed also indicated to those present that she had a “tortured colon”
resulting from the stress of her employment. (Id.)

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On February 19, 2011, Solano-Reed sent an anonymous email to MDE inquiring
into the legality of the testing protocol regarding the fact that students with 11 or 11.5
credits were not administered the MME. (Id. at Ex. O). In response, an official from the
MDE stated that those 11th graders who did not test would be expected to test as 12th
graders, but did not otherwise express any concern with the protocol. (Id. at Ex. P). On
February 27, 2011, she sent an email to a professor at Eastern Michigan University, in
which she detailed her concerns with the testing protocol and noted “[Martinez] is trying
to now build a case against me.” (Id. at Ex. N).
In April 2011, Solano-Reed sent a memo to William Coats, CEO of The Leona
Group, detailing her allegations of harassment and intimidation against Martinez and
Garibay. (Id. at Ex. P). The memo listed several “acts of harassment,” including
ignoring her at meetings, providing her with busy work, failing to provide direction,
statements made to other employees by Martinez about her, lack of invitations to
meetings, and her displeasure that teachers, not counselors, were now meeting with
students one-on-one. (Id.) After an investigation, Coats responded to the memo in
June and stated that Martinez’s work requests were reasonable, no evidence of
harassment or hostile work environment existed, and the testing protocol was “entirely
legal.” (Id. at Ex. Q). Subsequently, Solano-Reed refused to sign her poor performance
review. (Id. at Ex. R). Instead, she drafted a seven-page, single-spaced rebuttal,
detailing why the review was “malicious.” (Id.). Soon thereafter, The Leona Group
decided not to renew her contract for the upcoming school year.

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C.

The Complaint

On September 27, 2011, Solano-Reed filed a complaint against Defendants
alleging a violation of 42 U.S.C. § 1983 for wrongful termination resulting from engaging
in First Amendment protected speech, violation of the False Claims Act, violation of the
Michigan Whistleblower’s Protection Act, and violation of Michigan public policy.
Defendants filed a motion for summary judgment, asserting, inter alia, Solano-Reed did
not engage in protected activity under the statutes and cannot prove causation.
II.

STANDARD OF REVIEW
Summary judgment is appropriate only when 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).

The central inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
(1986). Rule 56 mandates summary judgment against a party who fails to establish the
existence of an element essential to the party's case and on which that party bears the
burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this
burden, the non-movant must come forward with specific facts supported by affidavits or
other appropriate evidence establishing a genuine issue for trial.

Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Fed. R. Civ. P. 56(c)(1)(A).
In evaluating a motion for summary judgment, the evidence must be viewed in the light
most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144,

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157 (1970). The Court “must lend credence” to the non-moving party’s interpretation of
the disputed facts. Marvin v. City of Taylor, 509 F.3d 234, 238 (6th Cir. 2007) (citing
Scott v. Harris, 127 S.Ct. 1769, 1775 (2007)). The mere existence of a scintilla of
evidence in support of the non-moving party's position will not suffice. Rather, there
must be evidence on which the jury could reasonably find for the non-moving party.
Hopson v.DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).
III.

ANALYSIS
A.

First Amendment Retaliation

Solano-Reed’s first cause of action is that her contract was not renewed in
retaliation for her engaging in protected speech under the First Amendment.
Specifically, because she voiced her concerns about the legality of the MME testing
protocol at CCAHS, The Leona Group decided to terminate the relationship.

In

contrast, Defendants assert she was let go based on her poor working performance
during the last several months of her employment at CCAHS.
The First Amendment “protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006).

In order to establish a prima facie case for

wrongful termination resulting from retaliation for engaging in speech protected by the
First Amendment, a plaintiff must demonstrate “(1) [she] was participating in a
constitutionally protected activity; (2) the defendant’s action injured the plaintiff in a way
likely to deter a person of ordinary firmness from further participation in that activity; and
(3) the adverse action was motivated at least in part by the plaintiff’s protected conduct.”
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 371 (6th Cir. 2011) (citing

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Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)). To be a
constitutionally protected activity, the employee must speak as a citizen and the speech
at issue must address a matter of public concern. Murphy v. Cockrell, 505 F.3d 446,
449 (6th Cir. 2007). Thus, speech made in accordance with an employee’s duties is not
entitled to protection under the First Amendment. Garcetti, 547 U.S. at 421.
In order to establish causation, plaintiff must “point to specific, nonconclusory
allegations reasonably linking her speech to employer discipline.” Rodgers v. Banks,
344 F.3d 587, 602 (6th Cir. 2003). If plaintiff creates an inference of causation through
direct or circumstantial evidence, the employer must then demonstrate that it would
have taken the same adverse employment action regardless of the protected speech.
Eckerman v. Tennessee Dept. of Safety, 636 F.3d 202, 208 (6th Cir. 2010).

The

plaintiff must show “the exercise of [her] First Amendment rights was a ‘substantial or
motivating factor’ in the adverse action.” Id. at 209.
1.

Protected Activity

Solano-Reed failed to provide enough evidence to establish her speech was a
matter of public concern. In her deposition, she admits it is part of her duty under the
Ethical Standards for Student Counselors to report her concerns about the testing
protocol at CCAHS. (Doc. 46 Ex. A, p. 70-72). Her contention is that because the issue
involved public school testing and education, it is a matter “undoubtedly of the highest
public concern.” Solano-Reed also argues that this type of concern was “extraordinary
rather than everyday communication” not within her duties. See Pucci v. Nineteenth
Dist. Court, 628 F.3d 752, 768 (6th Cir. 2010). However, it is clear from the evidence

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that Solano-Reed’s numerous objections to the protocol stemmed from her obligations
as a guidance counselor.
Although the specific issue regarding education may be of public concern,
Solano-Reed did not act a citizen when inquiring about the testing procedures to the
MDE and professors at Eastern Michigan University. She believed this was part of her
job; similar to the way she would not be acting as a citizen in advising students about
scholarship opportunities. See 547 U.S. at 422. In her letter to Coats, Solano-Reed
states, “Because I am a Certified School Counselor and because I belong to the
American School Counselor Association, I am prohibited from agreeing to Mr.
Martinez’s decision not to test 50% of the junior class.” (Doc. 46 Ex. P, p.4). Her
statements in this letter and at her deposition indicate her state of mind that it was her
duty as a guidance counselor, not an ordinary citizen, to object to the testing protocol.
Indeed, it undermines her claim that these were “extraordinary” communications outside
the scope of her job. Essentially, Solano-Reed objected to a practice with which she did
not agree as a guidance counselor. Thus, she was not engaged in constitutionally
protected activity in voicing her concerns.
2.

Causation

Even if Solano-Reed could establish she engaged in protected activity, she failed
to provide sufficient evidence that her objections to the testing protocol were a
substantial or motivating factor in the decision to not renew her contract.

See

Eckerman, 636 F.3d at 208. As evidence of causation, she points to the extra work
given to her by Martinez. However, The Leona Group, investigated the emails Martinez
sent and determined they were reasonable and appropriate requests. (Doc. 46 Ex. Q).

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Coats noted that it is reasonable for the school principal to request the guidance
counselor to assist with keeping track of graduation requirements for students who are
in jeopardy of not graduating. See (Id. at Ex. I). Likewise, sending an administrative
assistant to an employee’s office with a pink highlighted email does not amount to
harassment. See (Id. at Ex. U, p. 1). Solano-Reed’s claims indicate nothing more than
two employees who did not get along.

Notably, in Garcetti, the Supreme Court

cautioned that “while the First Amendment invests public employees with certain rights,
it does not empower them to ‘constitutionalize the employee grievance.’” 547 U.S. at
420 (citing Connick v. Myers, 461 U.S. 138, 154 (1983)).
B.

Federal False Claims Act

Solano-Reed next asserts a cause of action under the False Claims Act. The
False Claims Act permits individuals with information exposing fraud committed against
the United States to bring a qui tam action. 31 U.S.C. § 3730(b). An individual may
also bring an action on their own behalf. § 3730(h). In order to establish a prima facie
claim under § 3730(h), a plaintiff must prove “1) she was engaged in a protected
activity; and 2) that her employer knew about it.” McKenzie v. BellSouth Telecomm.,
Inc., 219 F.3d 508, 514 (6th Cir. 2000). In addition, the plaintiff must prove that her
employer terminated her employment or engaged in some kind of discrimination against
her as a consequence of the protected activity.

Id.

Protected activity includes

investigation or other steps taken “in furtherance of [a qui tam] action.” § 3730(h).
Although protected activity is to be construed broadly, it must be “reasonably connected
to the FCA” and “sufficiently further[ ]” such an action in order to be protected activity.
McKenzie, 219 F.3d at 515-16. “Although internal reporting may constitute protected

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activity, the internal reports must allege fraud on the government.”

Id. at 516.

Furthermore, the employee must provide “sufficient facts from which a reasonable jury
could conclude that the employee was discharged because of activities which gave the
employer reason to believe that the employee was contemplating a qui tam action
against it.” Id. at 517.
1.

Protected Activity

Solano-Reed argues that she was engaged in protected activity because she
undertook efforts to prevent CCAHS from defrauding the government via funds CCAHS
received from the NCLBA. This argument fails for several reasons. First, she provided
no evidence she was at all concerned with the government’s allocation of funding to a
school that fails to properly test its students within the parameters of the NCLBA.
Solano-Reed merely found it against her ethical obligations as a guidance counselor.
These actions are not “reasonably connected to the FCA” or serve to further a viable qui
tam action. See Id. at 515-16. None of her reports to The Leona Group or anonymous
reports to the MDE detail allegations of fraud.
Solano-Reed incorrectly relies on Bell v. Dean, 2010 U.S. District LEXIS 75740
(M.D. Ala. July 27, 2010), which is clearly distinguishable from the present case. The
plaintiff in Bell was actually responsible for filing grant applications with the government
in order to secure funding for Title III programs. Id. at *4. His employer pressured him
to use the funding for projects not disclosed in the grant application, resulting in
unauthorized use of funds, which he refused. Id. Here, Solano-Reed did not take part
in any action connected with a false claim for funding from the government. Her internal
reporting and anonymous inquiries to the MDE mentioned no concern for misuse of

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funds. Solano-Reed directed her concerns at Martinez’s harassing treatment of her
coupled with her concern about the testing protocol. There is no evidence in the record
that she was concerned with CCAHS’s commission of a fraud on the government or that
she intended to pursue a qui tam action.
2.

Causation

Furthermore, Solano-Reed failed to show that “the retaliation was motivated at
least in part by [her] engaging in protected activity.” See McKenzie, 219 F.3d at 518.
There is no evidence to suggest that The Leona Group believed she was contemplating
qui tam action against it. See Id. at 517. Thus, the nonrenewal of Solano-Reed’s
contract could not have been motivated by her allegedly protected activity, and she has
failed to demonstrate a casual connection.
C.

Michigan Whistleblowers’ Protection Act

Solano-Reed’s third cause of action asserts a violation of the Whistleblowers’
Protection Act.

The Michigan Whistleblowers’ Protection Act (“WPA”) prohibits

employer retaliation against employees who report suspected violations of law. See
Mich. Comp. Laws § 15.361, et seq. Section 2 of the Act provides in part:
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 suspected violation of a law or
regulation . . . to a public body . . . .
M.C.L. § 15.362. In order to establish a prima facie case under the Michigan WPA, a
plaintiff must show “(1) [she] was engaged in protected activity as defined by the
Whistleblower’s Protection Act, (2) [she] was discharged, and (3) a causal connection

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existed between the protected activity and the discharge.”

Shallal v. Catholic Soc.

Servs. of Wayne County, 566 N.W.2d 571, 574 (Mich. 1997). In order for a plaintiff to
qualify as engaging in protected activity, “the plaintiff reasonably must believe a
violation of law, regulation, or rule has occurred.” Shimkus v. Hickner, 417 F. Supp. 2d
884, 907 (E.D. Mich. 2006). Although an employee who is “about to” report is afforded
the same amount of protection as one who has already reported, clear and convincing
evidence is required for the former, but not the latter.

See Id. at 575; M.C.L. §

15.363(4).
1.

Protected Activity

Protected activity may be established by demonstrating the employee reported a
violation of suspected violation to a public body. See M.C.L. § 15.362. Importantly, The
Leona Group admitted it was a public body for purposes of this motion. (Doc. 46 at 16).
Indeed, there is no requirement that the public body be an outside agency. See Brown
v. Mayor of Detroit, 734 N.W.2d 514, 517 (Mich. 2007) (“It does not matter that if the
public body to which the suspected violations were reported was also the employee’s
employer.”). Although the emails to the MDE do not constitute reporting because of
their anonymous nature, the Court will assume only for purposes of this motion that
Solano-Reed’s memo to Coats constituted reporting under the WPA. Consequently,
Solano-Reed will not be held to the clear and convincing evidence standard.

See

M.C.L. § 15.363(4).
In addition, in order to be protected activity, at the time Solano-Reed sent the
memo to Coats, she must have possessed a reasonable belief of a violation of law on

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the part of CCAHS and The Leona Group. The evidence in the record indicates SolanoReed failed to meet this standard.
In her deposition, Solano-Reed claims she reported the illegal testing procedures
to “Paul” on the phone from the MDE. (Doc. 46 Ex. A p. 53-55). However, she provides
no detail as to what Paul said or any information from other representatives at the MDE.
She claims to have spoken to several individuals, but does not provide any of their
names or specific dates and times of the conversations. (Id. at 54). Moreover, the
anonymous emails she sent to the MDE reinforce the notion that Solano-Reed could not
have reasonably believed a violation of the law was taking place at CCAHS.

The

MDE’s response was not one of emergency or concern. (Id. at Ex. O). The Supervisor
for Accountability at the MDE made no mention that the practice was illegal or even
questionable as long as those non-testing 11th graders tested in 12th grade. This
would have put a reasonable person’s concerns to rest. Most notably, Solano-Reed
failed to provide any evidence that any employees present for her open objections over
the testing protocol believed them to be a violation of Michigan law. She claims to have
voiced her concerns at a meeting with MDE officials in 2010. However, she fails to
provide any concrete evidence that those officials agreed with her or expressed any
concern for the practice. (Compl. at ¶ 30-31). She was never cautioned to stop voicing
her displeasure by any of the Defendants, and there is no evidence suggesting the
practice was illegal by anyone other than Solano-Reed herself. Consequently, it is clear
she could not have had a reasonable belief that the testing protocol violated any
Michigan law or regulation. Thus, she is afforded no protection under the WPA.

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2.

Causation

Regardless of whether Solano-Reed engaged in protected activity, she failed to
provide evidence of causation. Michigan law requires more than a temporal connection
to show causation. See West v. Gen. Motors Corp., 665 N.W.2d 468, 473 n.12 (Mich.
2003). Solano-Reed cited no evidence that the nonrenewal was based on her allegedly
protected conduct. On the contrary, The Leona Group undertook efforts to address
Solano-Reed’s concerns about the testing protocol and even conducted an internal
investigation of Martinez’s conduct on her behalf. This evidence indicates that SolanoReed’s contract was not renewed because of her tumultuous relationship with Martinez
along with her sudden reluctance to complete the responsibilities associated with her
position. Thus, Solano-Reed failed to demonstrate a causal connection.
D.

Violation of Michigan Public Policy

Last, Solano-Reed asserts a cause of action for a violation of Michigan public
policy. She argues that although some of her conduct falls within the scope of the
Michigan WPA, “most of her efforts went beyond this [activity] where [she] objected to
the Defendants’ unlawful testing practices, noted what was actually required, and
advocated for all 11th graders to be tested.” (Doc. 54 at 20). Thus, she argues her
actions are protected by Michigan public policy.
Public policy must derive from objective sources. Kimmelman v. Heather Downs
Mgmt. Ltd., 753 N.W.2d 265, 268 (Mich. Ct. App. 2008). “[W]here there exists a statute
explicitly proscribing a particular adverse employment action, that statute is the
exclusive remedy, and no other ‘public policy’ claim for wrongful discharge can be
maintained.” Id.

Public policies enumerated by the Michigan Supreme Court in the

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wrongful termination arena include “an employee exercising a right guaranteed by law,
executing a duty required by law, or refraining from violating the law.” Id.
Solano-Reed’s separate claim for a violation of Michigan public policy fails. The
WPA provides protection for anyone who “reports or is about to report, verbally or in
writing, a violation or suspected violation of a law or regulation or rule.”

M.C.L. §

15.362. She argues that her noting and objecting to the testing procedures of CCAHS
during meetings constitutes activity outside the scope of the WPA and protected by
public policy and The State School Aid Act of 1979. See M.C.L. § 388.1601 et seq.
However, her actions are not protected by an objective and articulated source of public
policy outside of the WPA, nor did she point to any controlling authority to support her
position. Her actions are merely collateral to reporting CCAHS’s alleged violations of
the law. Solano-Reed was not forced or coerced into violating any laws by anyone.
She was not involved in actually carrying out the MME testing; thus, her mere refusal to
violate the State School Aid Act is no more protected by a separate theory of public
policy than an individual’s conscious refusal to break traffic laws while driving.
Consequently, because these activities fall within the scope of the WPA, Solano-Reed’s
public policy claim fails.
IV.

CONCLUSION
Accordingly, Defendants’ Motion for Summary Judgment is GRANTED.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

DATE: February 11, 2013

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CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon all
parties of record, electronically.
s/Bernadette M. Thebolt
Case Manager

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