Opinion
346542 346565
09-28-2023
JENNIFER JANETSKY, Plaintiff-Appellee, v. COUNTY OF SAGINAW and CHRISTOPHER BOYD, Defendants-Appellants, and SAGINAW COUNTY PROSECUTOR'S OFFICE and JOHN MCCOLGAN, Defendants. JENNIFER JANETSKY, Plaintiff-Appellee, v. COUNTY OF SAGINAW, JOHN MCCOLGAN, and CHRISTOPHER BOYD, Defendants-Appellants, and SAGINAW COUNTY PROSECUTOR'S OFFICE, Defendant.
UNPUBLISHED
Saginaw Circuit Court LC No. 15-028306-CL
Before: BOONSTRA, P.J., and GLEICHER, C.J., and M.J. KELLY, J.
ON REMAND
PER CURIAM.
This case is back before us on remand from our Supreme Court. Based on our Supreme Court's holdings, we reverse in part and affirm in part the trial court's denial of defendant County of Saginaw's (the County), defendant Christopher Boyd's (Boyd), and defendant John McColgan's (McColgan) motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact), and remand for entry of an order granting the motion with respect to all of plaintiff's claims except her claim for retaliation under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
The pertinent facts and procedural history leading to the initial appeals in this case were set forth in our previous opinion:
Plaintiff was employed as an assistant prosecuting attorney in the Saginaw County Prosecutor's Office from January 2010 until December 2015, when she resigned. At all relevant times, McColgan was the Saginaw County Prosecuting Attorney and Boyd was the Chief Assistant Prosecutor and plaintiff's supervisor.
Plaintiff was assigned a sexual assault case in October 2013 (the 2013 sexual assault case). The criminal defendant was charged with multiple counts of first-degree criminal sexual conduct (CSC-I). Plaintiff alleged in her complaint that in 2014, without her knowledge or approval, Boyd reached a plea deal with the defendant that included an agreement that the defendant would plead guilty to third-degree criminal sexual conduct (CSC-III) and be sentenced to probation; the agreement was reached and entered shortly before plaintiff's wedding, but plaintiff did not discover that the deal had been made until she returned to work. When plaintiff reviewed the file after returning to the office, she believed that Boyd had scored the sentencing guidelines incorrectly, had offered probation on a CSC-III conviction in violation of MCL 771.1(1), and had violated the Crime Victims Rights Act (CVRA)[ ] by failing to properly inform the victims. Although, according to plaintiff, Boyd objected to plaintiff's characterization of the plea deal, he ultimately signed a motion drafted by plaintiff to vacate the sentencing agreement. Subsequently, the trial court granted the motion to vacate the sentencing agreement and to allow the criminal defendant to withdraw his plea.
Plaintiff filed suit in November 2015, alleging that after she "reported these violations of law and informed McColgan and Boyd that she refused to acquiesce to them . . . [,] Boyd created a hostile [work] environment ...." Specifically, plaintiff alleged in her complaint, and testified in her deposition, that she had become afraid of Boyd since her report to McColgan, and that after the 2014
meeting, her duties had been altered and she was no longer "solely responsible for sex crimes charging." Further, plaintiff alleged that at a meeting in Boyd's office in June 2015, Boyd became enraged while discussing whether plaintiff should have kept him informed of developments in a case by text message. According to plaintiff, Boyd admitted that he was still angry about what had occurred with the 2013 sexual assault case, yelled at plaintiff, ordered her to sit down, and at one point briefly held a door to block her from leaving, causing her to fear for her physical safety. Plaintiff alleged in her complaint that in June 2015, her "doctors diagnosed her as psychiatrically disabled from working due to the hostile work environment created by Boyd and allowed to continue by McColgan" and that she was placed on medical leave, which continued "until December 15, 2015, at which time she involuntary resigned her employment . . . due to intolerable working conditions." Plaintiff's complaint alleged (1) violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.; (2) violation of public policy; (3) assault and battery; (4) intentional infliction of emotional distress; and (5) false arrest/false imprisonment.
Defendants sought summary disposition of plaintiffs' claims on various grounds, including governmental immunity and the absence of a genuine issue of material fact. The trial court granted summary disposition on all claims brought against the Saginaw County Prosecutor's Office[ ] and McColgan, as well as on plaintiff's claim of intentional infliction of emotional distress in its entirety. However, the court denied defendants' motion for summary disposition with respect to plaintiff's claims of assault and battery and false imprisonment, both with respect to Boyd and with respect to the vicarious liability of the County, and also denied the motion with respect to her WPA claim and her public policy claim. [Janetsky v Saginaw Co, unpublished per curiam opinion of the Court of Appeals, issued April 23, 2020 (Docket Nos. 346542 &346565), unpub op at 2-3 (footnote omitted).]
In Docket No. 346542 of the consolidated appeals, Boyd and the County appealed by right the portion of the trial court's November 7, 2018 order denying their motion for summary disposition under MCR 2.116(C)(7). In Docket No. 346565, the County, Boyd, and McColgan appealed by leave granted the portion of the order denying their motion for summary disposition under MCR 2.116(C)(10). Plaintiff did not challenge the dismissal of the claims against the Saginaw County Prosecutor's Office, the dismissal of plaintiff's intentional tort claims against McColgan on the grounds of absolute immunity, or the dismissal of her intentional infliction of emotional distress claim in its entirety.
See Janetsky v Saginaw Co, unpublished order of the Court of Appeals, entered March 20, 2019 (Docket No. 346565).
See id.
This Court reversed the trial court's denials of summary disposition and remanded the case for entry of an order granting summary disposition in favor of defendants on all of the remaining claims. Janetsky, unpub op at 10. This Court concluded that Boyd and the County were entitled to governmental immunity in connection with plaintiff's assault-and-battery and false-imprisonment claims, on the grounds that "a municipality may not be held vicariously liable for the intentional torts of its employees," that "Boyd's alleged conduct at the June 2015 meeting, taken as true, cannot reasonably be characterized as non-work-connected, or of a gross and reprehensible nature," id. at 5 (quotation marks and citation omitted), and that "plaintiff did not raise a genuine issue of material fact concerning Boyd's lack of good faith," id. at 6. This Court additionally concluded that the WPA wholly preempted plaintiff's public-policy wrongfultermination claim. Id. at 9.
This Court also held that Boyd, McColgan, and the County were entitled to summary disposition of plaintiff's WPA claim, on the grounds that, "[a]ssuming, without deciding, that plaintiff suffered an adverse employment action and that her meeting with McColgan constituted a 'report to a public body' under the WPA," plaintiff nonetheless failed to establish "a question of material fact regarding whether plaintiff had engaged in a 'protected activity' under the WPA." Id. at 7.
In light of its decisions, this Court declined to consider "defendants' arguments concerning the statute of limitations or the County's argument that it was not plaintiff's 'employer' under the WPA." Id. at 9 (footnote omitted).
Plaintiff sought leave to appeal in our Supreme Court. After hearing oral arguments on whether to grant leave, our Supreme Court, in lieu of doing so, issued a 15-page order featuring several partially-dissenting statements by various Justices. The majority reversed this Court's judgment in part, holding that this Court had "erred by concluding that: (1) defendant Christopher Boyd is entitled to immunity from tort liability because there is no genuine issue of material fact concerning whether he acted in good faith, (2) plaintiff has not established a genuine issue of material fact that she engaged in protected activity under the [WPA], by reporting actual or suspected violations of the law, and (3) the WPA provides the exclusive remedy for plaintiff's public-policy claim." Janetsky, ___Mich at ___; 982 N.W.2d at 375 (citation omitted); slip op at 2. Our Supreme Court remanded the case to this Court "for consideration of the issues raised by defendants but not addressed by that court during its initial review." Janetsky, ____Mich at ____; 982 N.W.2d at 375; slip op at 2. Our Supreme Court further stated that it expressed no opinion "as to whether plaintiff's public policy claim is otherwise legally or factually supported and leave that issue for further consideration on remand." Id. at 3.
II. THIS COURT'S UNDERSTANDING OF OUR SUPREME COURT'S REMAND ORDER
As stated, our Supreme Court has directed this Court to consider issues raised by defendants but not addressed during our initial review. We conclude that the following issues were raised by defendants and not addressed in our initial opinion: (1) whether plaintiff had demonstrated a genuine issue of material fact regarding whether Boyd committed false imprisonment, (2) whether plaintiff had demonstrated a genuine issue of material fact regarding whether Boyd committed assault and battery, (3) whether plaintiff's WPA claim was barred by the applicable statute of limitations, (4) whether the County was plaintiff's "employer" for the purposes of her WPA claim, and (5) whether plaintiff suffered an "adverse employment action" for the purposes of her WPA claim. Additionally, regarding plaintiff's public-policy wrongful termination claim, although the parties focused their appellate arguments on the issue of whether that claim was preempted by the WPA, our Supreme Court has directed us to explore on remand the issue of whether that claim is "otherwise legally or factually supported." We will therefore also consider whether the trial court erred by denying defendants' motion for summary disposition with respect to plaintiff's public-policy claim, given our Supreme Court's determination that the WPA was not the exclusive remedy for such claims.
III. UNADDRESSED ISSUES RAISED BY DEFENDANTS
A. FALSE IMPRISONMENT
As noted, our Supreme Court concluded that "a reasonable jury could conclude that Boyd's alleged conduct toward plaintiff lacked good faith and therefore he is not entitled to governmental immunity," but declined to consider whether plaintiff had established a question of fact concerning whether Boyd committed false imprisonment. Janetsky, ____Mich at ___ & n 3; 982 N.W.2d at 375 & n 3; slip op at 2 & n 3. We conclude that plaintiff did not establish a genuine issue of material fact and that the trial court therefore erred by denying defendants' motion for summary disposition with respect to this claim.
This Court reviews de novo a trial court's decision on a motion for summary disposition. Ford Credit Int'l Inc, 270 Mich.App. at 534. "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial." Walsh v Taylor, 263 Mich.App. 618, 621; 689 N.W.2d 506 (2004).
" 'False imprisonment is the unlawful restraint of an individual's personal liberty or freedom of locomotion.'" Clarke v K Mart Corp, 197 Mich.App. 541, 546; 495 N.W.2d 820 (1992),, quoting Stowers v Wolodzko, 386 Mich. 119, 134; 191 N.W.2d 355 (1971). "The elements of false imprisonment are [1] an act committed with the intention of confining another, [2] the act directly or indirectly results in such confinement, and [3] the person confined is conscious of his confinement." Moore v Detroit, 252 Mich.App. 384, 387; 652 N.W.2d 688 (2002) (bracketed ordinals retained, quotation marks and citations omitted). For the purposes of the tort of false imprisonment in a workplace setting, "brief confinements or constraints are insufficient." Id. at 388.
In this case, the trial court recited the elements of false imprisonment and then denied summary disposition of that claim with the following explanation:
[F]rom what it appears to the Court it sounds like this is an extremely brief encounter. What's being alleged by the Plaintiff it was enough to make her feel that she was falsely imprisoned and it's really a reasonableness standard.... [I]t has to be reasonable . . . in substance. Does it make any sense? A reasonable person would feel that way. And from what has been alleged at this point there is a genuine issue as to material fact as to all those elements.
We disagree with the trial court. Plaintiff's false-imprisonment claim was premised on plaintiff's allegation that, at a meeting held in Boyd's office in 2015, Boyd briefly held the door to block her from leaving his office. Plaintiff testified at her deposition, however, that she did not try to open the door after Boyd closed it. Further, she testified that when she yelled back at Boyd and demanded a union representative, Boyd opened the door and yelled for the union's vice president to come to the meeting. She estimated that the confrontation at the door lasted "thirty seconds or less." Plaintiff's own testimony indicates that, although she initially stated that she was going to leave, after brief argument and obtaining the presence of a union representative, she sat down and continued the discussion. Plaintiff therefore did not establish that she was actually confined or conscious of any confinement; at best, Boyd's office door remained closed for 30 seconds before being opened. Moore, 252 Mich.App. at 387 (noting that the plaintiff's confinement or restraint caused by the defendant's conduct was "momentary and fleeting."). Additionally," '[t]he essence of a claim of false imprisonment is that the imprisonment is false, i.e., without right or authority to do so.'" Id., quoting Hess v Wolverine Lake, 32 Mich.App. 601, 604; 189 N.W.2d 42 (1971). In the situation plaintiff described, Boyd, as plaintiff's direct supervisor, possessed at least some authority to insist that plaintiff remain at a workplace meeting in his office, at least if she wished to continue her employment. In sum, viewed in the light most favorable to plaintiff, Walsh, 263 Mich.App. at 621, plaintiff failed to establish a genuine issue of material fact regarding her alleged false imprisonment, and the trial court erred by denying defendants' motion for summary disposition regarding that claim.
B. ASSAULT AND BATTERY
As noted, our Supreme Court concluded that "a reasonable jury could conclude that Boyd's alleged conduct toward plaintiff lacked good faith and therefore he is not entitled to governmental immunity," but it declined to consider whether plaintiff had established a genuine issue of material fact concerning whether Boyd committed assault and battery. Janetsky, ___Mich at & ___n 3; 982 N.W.2d at 375 &n 3; slip op at 2 &n 3. We conclude that plaintiff did not establish a genuine issue of material fact and that the trial court therefore erred by denying defendants' motion for summary disposition regarding plaintiff's claim for assault and battery.
"A battery occurs when there is a wilful, harmful, or offensive touching of the plaintiff or of an object that is 'attached to [the plaintiff] and practically identified with' the plaintiff's body." Clarke, 197 Mich.App. at 549, quoting Espinoza v Thomas, 189 Mich.App. 110, 119; 472 N.W.2d 16 (1991). "An assault is defined as any intentional unlawful offer of corporal injury to another person by force, or force unlawfully directed toward the person of another, under circumstances which create a well-founded apprehension of imminent contact, coupled with the apparent present ability to accomplish the contact." Espinoza, 189 Mich.App. at 119. See also People v Johnson, 407 Mich. 196, 254; 284 N.W.2d 718 (1979) (civil assault requires that the tortfeasor "either have intended to commit a battery or to cause in the plaintiff an apprehension of a battery" (quotation marks and citation omitted)).
In this case, plaintiff did not allege that Boyd actually touched her, but argued that her claim for battery was supported by her and Boyd's struggle over the door to his office. The record does not support plaintiff's argument-in fact, plaintiff testified at her deposition that she didn't continue to touch the door handle or attempt to open the door after Boyd closed it. Further, plaintiff has not supported her argument that a door may become "attached to" and "practically identified with" the body of a person trying to open it. Clarke, 197 Mich.App. at 549 (citation omitted). The trial court acknowledged that plaintiff had not alleged an actual touching, yet held that there was a genuine issue of material fact regarding plaintiff's assault and battery claim based on the "allegation that [plaintiff] was holding onto the door and it was allegedly closed by Mr. Boyd and when you look at . . . the evidence presented at this point I find that there is a genuine issue as to material fact regarding that claim." To the extent the trial court's statement indicates that it found a genuine issue of material fact regarding whether a civil battery had occurred, it erred by doing so.
Further, plaintiff's allegations and testimony do not establish a genuine issue of material fact regarding whether Boyd's conduct constituted civil assault. Plaintiff did not testify that Boyd intentionally threatened to do her injury, and we conclude that the force Boyd applied to his own office door was not "force unlawfully directed toward" plaintiff's person. Espinoza, 189 Mich.App. at 119. Plaintiff described a heated confrontation and less-than-civil behavior on the part of Boyd, but, viewed in the light most favorable to her, Boyd's behavior falls short of assault as a matter of law. Id.; see also Johnson, 407 Mich. at 254.
C. STATUTE OF LIMITATIONS-WPA CLAIM
The trial court rejected defendants' statute-of-limitations defense regarding plaintiff's WPA claim. We review de novo the question of whether a claim is barred by a statute of limitations. McKiney v Clayman, 237 Mich.App. 198, 201; 602 N.W.2d 612 (1999). We conclude that the trial court was correct in its ruling; however, the abolition of the "continuing wrongs" doctrine places a temporal limitation on plaintiff's claim for damages.
Under the WPA, "[a] person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act." MCL 15.363(1). The trial court held that this limitations period began to run on June 5, 2015, after plaintiff was placed on administrative leave, and that plaintiff filed her complaint 84 days after that date.
The record indeed confirms that plaintiff filed her WPA claim within 90 days of June 5, 2015. However, "a claim for constructive discharge for separation from employment occurring after the alleged discriminatory acts cannot serve to extend the period of limitations for discriminatory acts committed before the termination." See Joliet v Pitoniak, 475 Mich. 30, 32; 715 N.W.2d 60 (2006). When, as in this case, a plaintiff's claim is "based on alleged discriminatory conduct that occurred before she resigned her position," such that the adverse employment action alleged does not coincide with the date of termination of plaintiff's employment, "the relevant date for the period of limitations is not plaintiff's last day of work, but the date of the last discriminatory incident or misrepresentation." Id.at 32-33, 41. In other words, because plaintiff alleges that she was constructively discharged as the result of retaliatory conduct from her employer, it is that conduct--not merely plaintiff's last day of work or the start of her administrative leave-that must fall within the 90-day limitations period of the WPA.
In this case, the record shows that the triggering event for plaintiff's decision to resign and eventually to litigate, or what plaintiff's attorney called "the straw that broke the camel's back creating the intolerable working conditions that resulted in her leaving her employment and never returning," was the June 1, 2015 meeting with Boyd. Because that meeting took place only four days earlier than the June 5, 2015 date the trial court referenced, adjusting the calculation for the running of the period of limitations to count from that triggering event brings a total of 88 days, which is still within the 90 days allowed under the limitations period. For these reasons, the trial court reached the correct result in declining to dismiss Plaintiff's WPA claim on statute-of-limitations grounds. See Zimmerman v Owens, 221 Mich.App. 259, 264; 561 N.W.2d 475 (1997) (this Court will not reverse when the trial court reaches the correct result, regardless of the reasoning employed). However, to the extent that the trial court stated or implied that plaintiff could seek damages for conduct that occurred more than 90 days before the date she filed suit, it erred by doing so; as we stated in our initial opinion, "to the extent the trial court based its decision regarding the limitations period on the 'continuing wrongs' doctrine, this doctrine has been disavowed in Michigan." Janetsky, unpub op at 9 n 7, citing Garg v Macomb Co Community Mental Health Servs, 472 Mich. 263, 290; 696 N.W.2d 646 (2005), amended on other grounds 473 Mich. 1205 (2005). and Marilyn Froling Revocable Living Trust v Bloomfield Hills Country Club, 283 Mich.App. 264, 280; 769 N.W.2d 234 (2009). Plaintiff's claim for damages under the WPA is therefore limited to that flowing from conduct that took place within the limitations period.
D. SAGINAW COUNTY WAS NOT PLAINTIFF'S EMPLOYER-WPA CLAIM
The trial court declined to dismiss the County as a defendant with respect to plaintiff's WPA claim on the basis that the County was not plaintiff's employer. We conclude that this was error. This issue presents a question of law that we review de novo. See Rapistan Corp v Michaels, 203 Mich.App. 301, 306; 511 N.W.2d 918 (1994), citing Cardinal Mooney High Sch v Mich. High Sch Athletic Ass'n, 437 Mich. 75, 80; 467 N.W.2d 21 (1991).
For purposes of the WPA, an "employee" is "a person who performs a service for wages or other remuneration under a contract of hire, written or oral, express or implied," including "a person employed by the state or a political subdivision of the state except state classified civil service." MCL 15.361(a). An "employer" in turn is "a person who has 1 or more employees," including "an agent of an employer and the state or a political subdivision of the state." MCL 15.361(b).
Our state Constitution directs that counties have elected prosecutors, Const 1963, art VII, § 4, and, under MCL 49.35, assistant prosecuting attorneys are engaged, and retained, by those elected county prosecutors. Our constitution and statutes do not explicitly state, however, whether a county is therefore the "employer" of assistant prosecutors hired by the elected prosecutor.
This Court has employed the "economic-reality" test in determining whether an employeremployee relationship exists for the purposes of the WPA:
The economic reality test looks to the totality of the circumstances surrounding the work performed. Relevant factors to consider under the test include: (1) control of a worker's duties; (2) payment of wages; (3) right to hire, fire, and discipline; and (4) performance of the duties as an integral part of the employer's business toward the accomplishment of a common goal. All the factors are viewed as a whole and no single factor is controlling. [Chilingirian v City of Fraser, 194 Mich.App. 65, 69-70; 486 N.W.2d 347 (1992), remanded on other grounds 442 Mich. 874 (1993) (citations omitted).]
In this case, the trial court held that there was at least a question of material fact, under the economic-reality test, whether the County was plaintiff's employer under the WPA. We disagree. Although factors (2) and (4) favor finding an employer-employee relationship, factors (1) and (3) weigh against it. Further, when the factors are viewed in totality, it is clear that a county prosecutor's office is substantially independent from the county itself. The county does not select its chief prosecutor, but must instead defer to the electoral process, and does not exercise supervisory authority over that official. And, other than funding the positions, the county has no role in hiring, retaining, discipling, or terminating assistant prosecutors. We conclude that this substantial independence tips the balance in favor of finding that the County was not plaintiff's "employer" under the WPA, and therefore that the trial Court should have granted summary disposition in favor of the County on plaintiff's WPA claim.
E. ADVERSE EMPLOYMENT ACTION-WPA CLAIM
As noted, our Supreme Court concluded that this Court erred by holding that plaintiff had not established a genuine issue of material fact regarding whether she had reported actual or suspected violations of the law and thus engaged in "protected activity" under the WPA; our Supreme Court concluded that "there is a question of fact as to whether plaintiff reported suspected violations of the law under MCL 771.1 and MCL 780.756(3)." In our previous opinion, this Court assumed, without deciding, that plaintiff had suffered an adverse employment action as retaliation for her protected activity. We now conclude, in light of our Supreme Court's holding, that the trial court correctly permitted plaintiff's WPA claim to proceed, albeit with the limitation on damages we discussed in Section III(C) of this opinion.
The WPA prohibits workplace retaliation against an employee who "reports or is about to report . . . a violation or a suspected violation of a law or regulation or rule . . . to a public body, unless the employee knows that the report is false ...." MCL 15.362. A plaintiff advancing a
WPA claim "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." Pace v Edel-Harrelson, 499 Mich. 1, 6; 878 N.W.2d 784, 787 (2016) (quotation marks and citation omitted).
Defendants argue that Boyd's conduct at the June 2015 meeting could not, as a matter of law, constitute an adverse employment action because plaintiff's duties were not changed as a result of that matter, nor was her compensation reduced; further, defendants essentially argue that plaintiff was treated no more harshly than other employees. We disagree that, as a matter of law, such conduct could never constitute an adverse employment action. The record shows that, immediately after the meeting, plaintiff complained to McColgan and Pat Duggan, a fellow assistant prosecutor and also a union grievance officer, as well as union representatives, concerning Boyd's conduct towards her; plaintiff was placed on paid administrative leave and ultimately resigned in December, citing Boyd's alleged retaliation, harassment, and assault as the reason for her resignation.
The WPA provides that an employer "shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment" based on the employee's engagement in protected activity. MCL 15.362. A reasonable jury could find that plaintiff's terms, conditions, or privileges of employment were threatened by Boyd at the June 2015 meeting, or that plaintiff was otherwise discriminated against; further, plaintiff alleged that Boyd admitted that he was "mad" about the case in which plaintiff had reported suspected violations of the law, saying "you embarrassed me." We therefore conclude that plaintiff established a genuine issue of material fact regarding the elements of her WPA claim, and that the trial court did not err by denying defendants' motion for summary disposition regarding this claim.
IV. PLAINTIFF'S PUBLIC-POLICY WRONGFUL TERMINATION CLAIM
As stated, our Supreme Court held that this Court erred by holding that the WPA provided the exclusive remedy for plaintiff's public-policy wrongful termination claim. Our Supreme Court instructed this Court on remand to "assess whether plaintiff's public-policy claim is legally and factually supported." Id., ___ Mich. at ____ n 1; 982 N.W.2d at 375 n 1; slip op at 2 n 1. We now do so, and conclude that it is not; the trial court therefore erred by denying defendants' motion for summary disposition regarding this claim.
In Suchodolski v Mich. Consol Gas Co, 412 Mich. 692, 694-695; 316 N.W.2d 710 (1982), our Supreme Court held as follows:
In general, in the absence of a contractual basis for holding otherwise, either party to an employment contract for an indefinite term may terminate it at any time for any, or no, reason. However, an exception has been recognized to that rule, based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. Most often these proscriptions are found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty.
The courts have also occasionally found sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharges. Such a cause of action has been found to be implied where the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment. [Citations omitted.]
In this case, our Supreme Court held that "plaintiff's public-policy claim is based on her alleged refusal to violate the law-i.e., her attempt to set aside that plea and sentencing agreement." We therefore analyze plaintiff's claim as based on that alleged refusal.
Specifically, plaintiff alleges that, while she was engaged in personal business, Boyd offered a defendant an agreement for a sentence of probation with jail time in exchange for pleading guilty to CSC-III, that MCL 771.1(1) did not authorize the sentence offered, and also that the victims had not been properly kept up to date in connection with the plea and sentencing agreement as required by the CVRA. However, the record shows that, despite plaintiff's concern that the victims had not been kept up to date, she was able to meet with the victims, provide new information, and receive additional feedback upon her return to the office. Because this took place before plaintiff's attempt to set aside the plea and sentencing agreement at issue, it appears that plaintiff's attempts to do so were based on her belief that the sentence violated MCL 771.1(1), not based on any violation of the CVRA.
We conclude that plaintiff could not have been asked to violate, nor could she have violated, MCL 771.1(1). MCL 771.1(1) permits a trial court to place a defendant on probation in prosecutions for "felonies, misdemeanors, or ordinance violations other than murder, treason, criminal sexual conduct in the first or third degree, armed robbery, or major controlled substance offenses." It does not, by its plain language, prohibit the prosecution from offering a plea and sentencing agreement involving probation. The Legislature is presumed to intend the meaning it plainly expressed. People v Matoon, 271 Mich.App. 275, 278; 721 N.W.2d 269 (2006). Had the Legislature wished to prohibit the prosecution from offering or agreeing to a sentence that turns out to be invalid under MCL 771.1(1), it could have done so; instead, it placed the burden on the trial court to avoid violating MCL 771.1 by imposing an invalid sentence of probation. Therefore, we conclude that plaintiff was not asked to violate the law, and that her motion to correct the plea and sentencing agreement based on its invalidity under MCL 771.1(1) was not a "refusal to violate the law." We conclude that plaintiff's attempt to bring the plea and sentencing agreement into compliance with MCL 771.1(1) does not place it within the limited class of legislative expressions of public policy that have been found to imply a cause of action for wrongful termination. See Suchodolski, 412 Mich. at 694-695 (noting that courts have "occasionally found sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharges") (emphasis added). The trial court therefore erred by allowing plaintiff's public-policy claim to survive summary disposition.
V. CONCLUSION
Our Supreme Court left untouched our holding that the County was entitled to governmental immunity, but, as stated, reversed this Court with regard to Boyd's entitlement to governmental immunity. Janetsky, ___Mich at ___; 982 N.W.2d at 375 (citation omitted); slip op at 2. In light of our review of the issues raised by defendants but not previously decided by this Court, and our review of plaintiff's public-policy wrongful termination claim, in Docket No. 346565, we reverse in part and affirm in part the trial court's denial of defendants' motion for summary disposition under MCR 2.116(C)(10), and remand for entry of an order, otherwise consistent with this opinion, granting the motion with respect to all of plaintiff's claims except her claim for retaliation under the WPA. We do not retain jurisdiction.
GLEICHER, C.J. (concurring in part and dissenting in part)
Jennifer Janetsky contends that she was constructively discharged from her position as an assistant prosecuting attorney (APA) in the Saginaw County Prosecutor's Office after she reported that one of her superiors had endorsed an illegal plea agreement. A different panel of this Court determined that none of the causes of action Janetsky pleaded in support of her claim should have survived summary disposition, and remanded the matter to the circuit court for entry of an order dismissing the case.
Our Supreme Court reversed in part, holding that Janetsky had presented sufficient evidence to support a claim under the Whistleblower's Protection Act (WPA), MCL 15.361 et seq. The Supreme Court directed this Court to determine whether Janetsky's evidence also established an actionable public policy tort claim, and to consider whether Janetsky's claims for false imprisonment and assault and battery are factually and legally supportable.
The majority dismisses all of Janetsky's claims but for the WPA action the Supreme Court found viable. I respectfully dissent.
I. FACTUAL BACKGROUND
Saginaw County APA Janet Janetsky charged Justin Hannahs with three counts of criminal sexual conduct in the first degree (CSC-I). During plea negotiations, Janetsky offered Hannahs the opportunity to plead guilty to a single count of CSC-I. Hannahs rejected the offer.
Mark Van Benschoten, an attorney and a friend of Hannah's family, visited Janetsky at her office and asked her to make a better offer. Janetsky referred Van Benschoten to her superiors, including defendant Christopher Boyd, the Chief Assistant Prosecutor. According to Janetsky, Boyd "pushed" her to make a better offer, but she resisted. Shortly thereafter, a problem with the prosecution's case emerged. Evidence surfaced that one of the complaining witnesses had possibly falsified the computer evidence provided to the prosecution.
Janetsky went on a honeymoon in early June 2014, and the Hannahs case remained pending. When she returned, Janetsky learned that Boyd had met with Hannahs' attorney before she left for her honeymoon and had offered Hannahs a plea to third-degree criminal sexual conduct (CSC-III) with a sentence recommendation of probation and a jail term. Hannahs accepted that offer and entered a plea. Janetsky knew that Boyd had not consulted with the complainants to obtain their views about this deal, in contravention of MCL 780.756(3). Janetsky also recognized that Hannahs' sentence violated MCL 771.1(1), which bars trial courts from imposing probation sentences for CSC-III convictions.
Janetsky met with John McColgan, the Saginaw County Prosecuting Attorney, to express her concerns about the plea deal. McColgan authorized her to file a motion to set aside the plea. Janetsky testified that she intended to allow Hannahs the option of accepting the plea, but "without the unlawful sentencing recommendation." Janetsky prepared the motion, and according to Janetsky, Boyd reluctantly signed it.
The prosecution of Hannahs fell apart after the case was remanded for a preliminary examination. One of the complaining witnesses was formally accused of perjuring herself at the exam. The charges against Hannahs were dismissed in June 2015.
Janetsky suspected that Boyd harbored ill will toward her because she had forced the plea withdrawal that he had negotiated, and she feared his retaliation. According to Janetsky, Boyd did retaliate in various ways during the next year, including by verbally abusing her in front of her peers and by creating a hostile work environment. She testified that the retaliation escalated and came to a head on June 1, 2015, during a meeting about an unrelated case. Janetsky described that the case was one "in which the defense attorney indicated that they had gotten a better offer from . . . Boyd than the one that I had offered. I came downstairs to try to ask . . . Boyd whether or not that was actually true and instead immediately was assaulted and berated."
According to Janetsky, an intern accompanied her to Boyd's office, but Boyd told the intern to leave, shut the door, returned to his desk and, "with a bright red face yelling," "ordered" Janetsky to sit. Boyd repeatedly demanded that she sit, Janetsky recounted, despite that she told him she preferred not to. In response to her hesitation to sit, Boyd "physically became redder, he became more agitated and he began yelling more." Janetsky testified that she "first . . . tried to calmly respond and tell him that I was trying to follow his direct order," but Boyd admonished her for failing to sit, and also accused her "little cronies" of sending her "useless crap" in e-mails or texts. Janetsky claims that she responded, "[Y]ou're hostile and agitated and unprofessional and inappropriate . . . and I am not going to continue this conversation without my union present." Boyd "continued to yell and did not get me my union rep." When she tried to leave Boyd's office, Janetsky continued, Boyd
stood up. He's still yelling. He's not getting me my union rep. I said I'm going to go and I started to move this way toward the door .... I started to move to my left toward the door. That's when Boyd got up, he came flying out from behind the desk, very quickly came behind me, around me, behind me. Put his hand on the door and blocked my exit.
Under questioning by defense counsel, she added the following details:
Q. And did you reach for the [door] handle?
A. I'm sure that I did.
Q. Did you grab the handle?
A. I - - yes, I believe my hand was on the door when his hand hit the top of the door right above my head.
Q. And then your testimony is in the time that you started - - after you started to move toward the door, . . . Boyd came from around his desk and walked toward the door and then behind you at the door?
A. As I'm walking toward the door, he was already standing, he's already out from behind his chair. He had a straight shot to go this way, so I'm walking
this way toward the door, he comes behind me like this and throws his hand on the door to block it.
Q. And what hand did he put on the door?
A. His left hand because he was facing me.
Q. And did he have any contact with you when his left hand went on the door.
A. No, he did not - - I could - - all I could feel was the slam - - the bang of the door.
Q. So he was behind you at this time.
A. Correct.
Janetsky testified that her hand was on the door when Boyd slammed it shut. She estimated that the confrontation at the door lasted "thirty seconds or less." Boyd then abruptly "threw the door open" and called another assistant prosecutor into the room. During the conversation that ensued, Janetsky claimed that she told Boyd: "[Y]ou're not mad about this text situation, you're mad about the Hannahs case," and that Boyd responded, "[Y]ou're darned right, you embarrassed me." Although she had no physical contact with Boyd, Janetsky testified that she was fearful of physical contact and thought "that I would have to fight my way out of the room."
Boyd then removed Janetsky from the Hannahs case. Janetsky notified McColgan that Boyd had created a hostile work environment. McColgan placed Janetsky on paid administrative leave, and two weeks later changed her status to unpaid administrative leave. Janetsky became unable to work due to stress and anxiety, and involuntarily resigned from her employment.
Janetsky's complaint identified five causes of action: violation of the WPA; public policy tort; assault and battery; intentional infliction of emotional distress; and false imprisonment. The circuit court denied summary disposition of Janetsky's claims against Boyd for assault and battery and false imprisonment, rejecting Boyd's argument that he was immune from suit under the governmental tort liability act, MCL 691.1401 et seq. This Court granted defendants' application for leave to appeal and reversed and remanded for entry of an order granting summary disposition to defendants. Janetsky v Saginaw Co, unpublished per curiam opinion of the Court of Appeals, issued April 23, 2020 (Docket Nos. 346542 &346565). The Supreme Court reversed in part and remanded the matter to this Court for further proceedings. Janetsky v Saginaw Co, 510 Mich. 1104; 982 N.W.2d 374 (2022).
I concur with the majority that on remand, the issues presented are whether: (1) Janetsky established prima facie cases of false imprisonment and assault and battery; (2) Janetsky's WPA claim is barred by the statute of limitations; (3) the county was Janetsky's "employer" under the WPA; (4) Janetsky suffered an "adverse employment action" under the WPA, and (5) Janetsky's public policy claim is "legally or factually supported." The majority correctly holds that Janetsky's WPA claim must proceed to trial with her damages limited to those that accrued within the statutory period of limitations. I also concur that Saginaw County was not Janetsky's employer. I part ways with the majority, however, regarding the viability of Janetsky's claims for false imprisonment, assault and battery, and public policy tort.
II. ANALYSIS
A. FALSE IMPRISONMENT
Janetsky's false imprisonment claim arises from her confrontation with Boyd in his office, and his forceful closing of the office door when she attempted to leave. The majority forecloses Janetsky's false imprisonment claim despite that the evidence supports each and every element of false imprisonment under Michigan law.
According to the majority, Janetsky "did not establish that she was actually confined or conscious of any confinement; at best, Boyd's office door remained closed for 30 seconds before being opened." Citing Moore v Detroit, 252 Mich.App. 384, 388; 652 N.W.2d 688 (2002), the majority implies that because Janetsky's confinement was only "momentary and fleeting," her false imprisonment claim lacks merit. The majority additionally holds that Boyd had the "authority" "to insist that [she] remain at a workplace meeting in his office, at least if she wished to continue her employment." The record refutes the first two propositions and I disagree with the third.
The record supports that Janetsky was very much aware of her confinement, as her comment that she thought she would have to "fight her way" out of the room graphically attests. The majority's reliance on the alleged brevity of Janetsky's confinement represents an incorrect application of dictum and contradicts longstanding law. And the notion that a supervisor is privileged to "insist" a subordinate being screamed at remain seated during a supervisor's tirade is troubling at best.
The tort known as false imprisonment protects an individual's freedom of movement. The First Restatement of Torts described false imprisonment as "[a]n act which, directly or indirectly, is a legal cause of confinement of another within boundaries fixed by the actor for any time, no matter how short in duration[.]" Such an act "makes the actor liable to the other irrespective of whether harm is caused to any legally protected interest of the other" if the actor intended the confinement, the other was "conscious" of and did not consent to the confinement, and the confinement was not "otherwise privileged." Restatement Torts, 1st, § 35(1) (1934).
The Second Restatement of Torts describes the tort similarly, although it introduces the concept of "merely transitory or otherwise harmless confinement:"
(1) An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm. [Restatement Torts, 2d, § 35 (1965).]
Subsection (2) tethers the duration of a confinement to intent. If there is no intent to confine, the Second Restatement posits, a "merely transitory otherwise harmless confinement" is not actionable.
The Third Restatement again reformulates the contours of the tort, explaining that "an actor is subject to liability to another for false imprisonment if":
(a) the actor intends to confine the other within a limited area, or the actor's intent is sufficient under § 11 (transferred intent);
(b) the actor's affirmative conduct causes a confinement of the other, as provided in §§ 8 and 9, or the actor fails to release the other from a confinement despite owing a duty to do so;
(c) the other is aware that he or she is confined or the other suffers bodily harm as a result of the confinement; and
(d) the other does not consent to the confinement, as provided in § 12. [Restatement Torts, 3d, § 7 TD (2018).]
"Confinement" of another is established if:
(a) the actor employs physical barriers that preclude, or appear to preclude, the other from exiting the area of confinement, and the other is unaware of a readily available and safe means of exit;
(b) the actor employs physical force or restraint, or the actor makes an express or implied threat of immediate physical force or restraint, and the other submits to the force, restraint, or threat rather than exiting the area of confinement;
(c) the actor causes duress, other than by a threat of force or of restraint, and the other submits to the duress rather than exiting the area of confinement; or
(d) the other submits to the actor's assertion of legal authority, as provided in § 9. [Restatement Torts, 3d § 8 TD.]
The Comments to the Third Restatement include the observation that "[t]he temporal scope of confinement can be very brief. If D grabs P by the arm against P's will, refusing to let P go, that is sufficient for false imprisonment, even if P breaks free in less than a minute. Of course, the duration of confinement is a relevant consideration in the determination of a plaintiff's damages." Id. at cmt c.
Michigan's common law has been consistent with the three Restatement approaches to this tort. Although a fractured decision, Justice Levin's opinion in Adams v Nat'l Bank of Detroit, 444 Mich. 329, 341; 508 N.W.2d 464 (1993), adopts the Second Restatement's description of the elements of false imprisonment as: "an act committed with the intention of confining another, the act directly or indirectly results in such confinement, and the person confined is conscious of his confinement." None of the other Justices disagreed with this definition.
Janetsky's testimony describes a false imprisonment consistent with these elements. Janetsky testified that when Boyd continued yelling at her while becoming more agitated, she announced that she was "going to go and started to move . . . toward the door." She recollected that Boyd then "came flying out from behind the desk" and "blocked my exit." This testimony amply supports that Boyd intended to confine Janetsky in his office, did in fact confine her by closing the door as she tried to leave, and that Janetsky was entirely aware of her confinement. Were there any doubt about Janetsky's ability to establish a prima facie case, M Civ JI 116.02 dispels it:
False imprisonment is the unlawful restraint of an individual's personal liberty or freedom of movement. To constitute a false imprisonment, there must be an intentional and unlawful restraint, detention or confinement that deprives a person of his or her personal liberty or freedom of movement against his or her will. The restraint necessary to create liability for false imprisonment may be imposed either by actual physical force or by an express or implied threat of force.
Janetsky's evidence satisfies these elements.
Apparently relying in part on Moore, 252 Mich.App. 384, the majority implies that because Boyd's door was closed for only 30 seconds before he opened it, Janetsky's confinement was "momentary and fleeting" and therefore not actionable. Moore does state, in obiter dictum, that "brief confinements or restraints are insufficient for false imprisonment." Id. at 388. The majority's reliance on this dictum is problematic for several reasons.
First, the overwhelming weight of the common law (including Michigan's common law) does not support the proposition that a court may dismiss a false imprisonment claim based on the court's perception that the period of confinement was "too brief" to be actionable. What does "too brief" mean in the false imprisonment context? Is five minutes "too brief?" How are judges supposed to gauge the time component? Prosser's textbook teaches that "[i]t is at least settled that the imprisonment need not be for more than an appreciable length of time, and that it is not necessary that any damage result from it other than the confinement itself, since the tort is complete with even a brief restraint of the plaintiff's freedom." Prosser &Keeton, Torts (5th ed), § 11, p 48. This makes sense, since the tort is intended to protect a person's "dignitary interest in feeling free to choose one's own location[.]" Restatement Torts, 2d, § 35 cmt h. That is why "[a]n intentional confinement that causes no physical harm, no pain, no anxiety, and no loss of opportunity can be a false imprisonment." Goldberg &Zipursky, Torts As Wrongs, 88 Tex L Rev 917, 955 (2010). By engrafting a nebulous time requirement on the tort, the majority loses sight of the reasons that even a "brief" false imprisonment can significantly disrupt a person's sense of well-being, warranting a remedy.
See 32 Am Jur 2d False Imprisonment § 15.
Second, Moore cited as authority for the notion that "brief confinements or restraints are insufficient for false imprisonment" this Court's opinion in Willoughby v Lehrbass, 150 Mich.App. 319; 388 N.W.2d 688 (1986). Willoughby does not hold that "brief" confinements are not actionable. Rather, this Court held in Willoughby that the plaintiff failed to plead or present evidence that one of the defendants accused of false imprisonment (a high school principal) had "intentionally falsely imprisoned" the plaintiff. Id. at 348. The other defendant, the Court concluded, had not "detain[ed]" the plaintiff, and the plaintiff's complaint failed to allege that he had. Willoughby did not affect a sea change in Michigan's false imprisonment law by inserting a time component, and Moore's indirect suggestion that it did should not be mechanically accepted by this Court.
Third, the majority's application of a timeframe for false imprisonment claims is incompatible with the role of a jury in determining whether a intended and unwelcome confinement merits an award of damages. Here, a jury may be persuaded that Janetsky suffered no damages due to the brevity of the time she was forced to remain in Boyd's office. Whether a confinement was too short to merit a remedy is the jury's decision to make.
Finally, I cannot accept the majority's novel theory that Boyd, "as plaintiff's direct supervisor, possessed at least some authority to insist that plaintiff remain at a workplace meeting in his office, at least if she wished to continue her employment." The law recognizes several defenses to false imprisonment, including consent and privilege. The law does not recognize the "privilege" of an employer to trap an employee in an office so that he can berate her. I cannot accept the majority's view that Janetsky should have willingly submitted herself to Boyd's tantrum if she wished to keep her job, or that such workplace behavior is immune from a claim of false imprisonment.
B. ASSAULT AND BATTERY
The majority's determination that Janetsky's struggle with Boyd over control of the door did not constitute an assault and battery also elides the facts and the law. "An assault is any intentional, unlawful threat or offer to do bodily injury to another by force, under circumstances which create a well-founded fear of imminent peril, coupled with the apparent present ability to carry out the act if not prevented." M Civ JI 115.01. "A battery is the willful or intentional touching of a person against that person's will [by another / by an object or substance put in motion by another person]." M Civ JI 115.02.
Boyd's act of intentionally and forcefully shutting the door while Janetsky held the handle, coupled with Janetsky's apprehension of physical contact, suffices to create a prima facie case of assault and battery. As the model jury instruction states and the law reinforces, a battery can be accomplished by an intentional, unconsented, or offensive touching of something closely connected with a person. See People v Starks, 473 Mich. 227, 234; 701 N.W.2d 136 (2005). A jury should decide whether Boyd's act of slamming the door shut while Janetsky held the handle satisfies that standard. And this Court has repeatedly held that "because an attempt to commit a battery will establish an assault, every battery necessarily includes an assault because a battery is the very consummation of the assault." Lakin v Rund, 318 Mich.App. 127, 131; 896 N.W.2d 76 (2016) (quotation marks and citations omitted). In my view, Janetsky's evidence supports both of these torts.
C. PUBLIC POLICY TORT
In its remand order, the Supreme Court characterized Janetsky's public policy tort claim as "based on her alleged refusal to violate the law - i.e., her attempt to set aside [the] plea and sentencing agreement" based on her view that it violated MCL 771.1. Janetsky, 510 Mich. at 1106. The majority dispenses with Janetsky's public policy tort claim by holding that because Janetsky was never asked to violate the law and could not possibly have personally violated MCL 771.1(1), she has no claim under a public policy tort theory.
In my view, Chief Justice CLEMENT's discussion of Janetsky's public policy tort claim in her separate statement in the Supreme Court's remand order expresses the correct legal approach:
MCL 771.1(1) is a formal legislative expression of the state's public policy, which it presumably prefers to see obeyed. To the extent that plaintiff can demonstrate that defendants retaliated against her as a result of her efforts to bring the underlying criminal prosecution into compliance with MCL 771.1(1), I believe that should give rise to a common-law claim for termination in violation of public policy as was recognized in Suchodolski v Mich. Consol Gas Co, 412 Mich. 692; 316 N.W.2d 710 (1982). [Janetsky, 510 Mich. at 1108-1109 (CLEMENT, J., concurring in part and dissenting in part).]
Chief Justice CLEMENT aptly summarized: "Because MCL 771.1(1) is an expression of the state's public policy, I do believe that it is a legitimate basis for plaintiff's claim that she was terminated in violation of that public policy when she alleges that she was retaliated against for seeking to achieve compliance with the statute." Id. at 1109.
In rejecting Janetsky's public policy claim, the majority hangs its hat on the fact that MCL 771.1(1) constrains the trial court's discretion to sentence a CSC-II defendant to probation, but does not preclude a prosecuting attorney from offering a plea deal that includes probation. This analysis collides with the reasons that our Supreme Court permits public policy tort claims in at-will employment situations.
In Suchodolski, 412 Mich. at 694-695, our Supreme Court held that even though an at-will employee is subject to termination at any time and for no stated reason, "some grounds for discharging an employee are so contrary to public policy as to be actionable." "Most often," but not always, the Supreme Court explained, "these proscriptions are found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty." Id. at 695. But "sufficient legislative expression of policy" may exist even absent "an explicit [legislative] prohibition on retaliatory discharges." Id.
Viewed in the light most favorable to Janetsky, the evidence supports that she was constructively discharged because she objected to a bargained-for sentence that violated Michigan law. The public policy expressed in MCL 771.1(1) is straightforward: the Legislature prohibits a court from sentencing a defendant convicted of CSC-III to probation because in the Legislature's view, probation is a disproportionately light punishment for a serious sexual offense.
Given the clear-cut public policy embodied in MCL 771.1(1), a prosecuting attorney should not apply his stamp of approval to a plea deal permitting a CSC-III defendant to enjoy a probationary sentence. According to Janetsky, Boyd did exactly that. And according to Janetsky, Boyd attempted to pressure her to keep quiet about the deal, and only reluctantly signed the motion to set aside the plea. Janetsky refused to quietly accede to advocating or overlooking an illegal sentence, and insisted that her office pursue a motion for plea withdrawal. These actions, she claims, precipitated Boyd's retribution.
While Janetsky's WPA claim is based on a report of an illegal plea, her public policy claim arises from her active efforts to undo a wrong, which included exposing Boyd's complicity with the plea. Janetsky did not personally "fail" or "refuse" to violate a law in the course of her employment. But she exposed a legal violation and demanded that it be remedied. If Janetsky was constructively discharged because she refused to sit idly by while a court and a prosecuting attorney violated the law, her discharge violated public policy. I would hold that Janetsky has presented evidence entitling a jury to determine whether her public policy tort claim has merit.