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Millar v. Construction Code Authority

Supreme Court of Michigan

March 29, 2018

BRUCE MILLAR, Plaintiff-Appellant,
v.
CONSTRUCTION CODE AUTHORITY, ELBA TOWNSHIP, and CITY OF IMLAY CITY, Defendants-Appellees.

          Argued on application for leave to appeal November 8, 2017.

         On June 26, 2014, Bruce Millar brought an action in the Lapeer Circuit Court against the Construction Code Authority (CCA), Elba Township, and Imlay City, alleging violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.; wrongful termination in violation of public policy; and conspiracy to effectuate wrongful termination and violate the WPA. Millar had performed mechanical and plumbing inspection services for the CCA, an inspection and development control agency, which had contracts with Imlay City and Elba Township to provide licensed inspections. On March 11 and March 20, 2014, Imlay City and Elba Township each wrote letters to the CCA directing it to terminate Millar's inspection services within their communities. On March 27, the CCA drafted a letter to Millar stating that he would no longer perform inspections in those communities, but it was not until Millar arrived at work on March 31 that he was given a copy of the CCA's letter. That same day, he was prevented from working in Imlay City. The Lapeer Circuit Court, Nick O. Holowka, J., granted summary disposition on all counts to the defendants, ruling that the WPA claim was time-barred because the WPA violation occurred, at the latest, on March 27, when the CCA drafted its letter, and therefore Millar had filed his claim one day after the 90-day limitations period in MCL 15.363(1) had run. The court also concluded that the WPA preempted Millar's public-policy claim. The Court of Appeals, Owens, P.J., and Borrello and Stephens, JJ., affirmed in an unpublished per curiam opinion issued August 4, 2016 (Docket No. 326544). Millar applied for leave to appeal in the Supreme Court, which ordered and heard oral argument on whether to grant the application or take other peremptory action. 500 Mich. 992 (2017).

         In a unanimous opinion by Justice McCormack, the Supreme Court, in lieu of granting leave to appeal, held:

         The running of the limitations period in MCL 15.363(1) is triggered by an employer's action to implement the decision that is alleged to violate the WPA. Accordingly, the running of the limitations period in this case began when the CCA took an adverse employment action to alter Millar's employment on March 31, 2014. The Court of Appeals erred by relying on Joliet v Pitoniak, 475 Mich. 30 (2006), to conclude that the alleged wrong occurred either when the city and township wrote letters to the CCA directing it to revoke the plaintiff's authority to work in their jurisdictions or when the CCA in turn drafted its letter to the plaintiff carrying out those directions. Because the defendants took no action to curtail the plaintiff's employment responsibilities before March 31, 2014, the plaintiff had no actionable WPA claim until that date, which is when the allegedly discriminatory action occurred. Therefore, Millar's WPA claim was timely filed, and the Court of Appeals erred by affirming the trial court's grant of summary disposition to the defendants.

         Court of Appeals judgment reversed in part; circuit court order granting summary disposition to the defendants vacated; case remanded to the circuit court for further proceedings.

          Clement, Justice took no part in the decision of this case.

          Stephen J. Markman, Chief Justice, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Kurtis T. Wilder, Elizabeth T. Clement, Justices.

         BEFORE THE ENTIRE BENCH (except Clement, J.)

          OPINION

          McCormack, J.

         At issue in this case is when the limitations period in the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., begins running. The defendant Construction Code Authority (CCA) told the plaintiff, one of its inspectors, that he had been terminated by the defendants Imlay City and Elba Township when he showed up for work on March 31, 2014. It was the CCA's action on that day that triggered the running of the limitations period, not the defendants' earlier decisions to terminate him, as no action was taken by any defendant to effectuate those decisions. We therefore reverse the Court of Appeals' holding that the alleged wrong triggering the running of the limitations period "occurred when the City and Township wrote the letters to the CCA directing the CCA to terminate plaintiff . . . ." Millar v Constr Code Auth, unpublished per curiam opinion of the Court of Appeals, issued August 4, 2016 (Docket No. 326544), p 6. We further reverse the Court of Appeals to the extent that it held the plaintiff's WPA claim untimely "even if we were to assume that CCA's conduct was the allegedly wrongful conduct that commenced the 90-day clock, " citing as the CCA's alleged wrongful act its "termination of plaintiff's assignments in the City and the Township on March 27, 2014." Id. On March 27, 2014, the CCA drafted its own letter to the plaintiff communicating the bad news from the city and township defendants, but as noted it did nothing to effectuate that decision until March 31. Id.

         The statutory limitations period on the plaintiff's WPA claim therefore did not begin running until the CCA took action to alter the plaintiff's employment on March 31, 2014. Because his complaint was filed 87 days later, it was timely filed under MCL 15.363(1). We reverse the Court of Appeals' judgment in part, vacate the Lapeer Circuit Court's March 19, 2015 order granting summary disposition to the defendants, and remand this case to the Lapeer Circuit Court for further proceedings consistent with this opinion.[1]

          I. FACTS AND PROCEDURAL HISTORY

         The plaintiff performed mechanical and plumbing inspection services for the defendant CCA, an inspection and development control agency. The CCA had contracts with, among others, the defendants Imlay City and Elba Township to provide licensed inspections, and the plaintiff had performed numerous inspections within those jurisdictions. On March 11 and March 20, 2014, the defendant city and the defendant township respectively wrote letters to the CCA directing it to terminate the plaintiff's inspection services within their communities. On March 27, the CCA drafted a letter to the plaintiff to do just that; the letter stated that the plaintiff would no longer perform inspections in those communities.[2] But it was not until the plaintiff arrived at work on March 31 that he was given a copy of the CCA's letter notifying him of the decision to terminate his services in the defendant communities.[3] As a result, that same day he was prevented from working in Imlay City.

          The plaintiff filed a three-count complaint alleging violation of the WPA, [4]wrongful termination in violation of public policy, and conspiracy to effectuate wrongful termination and violate the WPA. The trial court granted summary disposition on all counts to all the defendants. The court reasoned in relevant part that the WPA claim was time-barred because the WPA violation occurred, at the latest, on March 27, when the CCA drafted its letter, and therefore the plaintiff had filed his claim one day after the 90-day limitations period in MCL 15.363(1) had run. The trial court also concluded that the WPA preempted the plaintiff's public-policy claim.[5] The Court of Appeals affirmed. The plaintiff appealed here, asserting his WPA and public-policy claims but dropping the civil-conspiracy claim. We ordered oral argument on the application and directed the ...


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