                          STATE OF MICHIGAN

                           COURT OF APPEALS



TODD BOWEN,                                                         UNPUBLISHED
                                                                    January 16, 2018
               Plaintiff-Appellant,

v                                                                   No. 334620
                                                                    Alpena Circuit Court
ALPENA REGIONAL MEDICAL CENTER,                                     LC No. 16-007049-CZ

               Defendant-Appellee.


Before: O’CONNELL, P.J., and HOEKSTRA and SWARTZLE, JJ.

PER CURIAM.

        This lawsuit involves claims under the Whistleblowers’ Protection Act, MCL 15.361 et
seq., the Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., and the Public Health Code,
MCL 333.1101 et seq. Plaintiff appeals as of right from the trial court’s opinion and order
granting summary disposition in favor of defendant with regard to his amended complaint under
MCR 2.116(C)(10). Plaintiff also challenges an earlier opinion and order that granted summary
disposition in defendant’s favor with respect to plaintiff’s original complaint. Because plaintiff
may be able to establish that he was constructively discharged and discovery has not yet
commenced, we vacate the trial court’s grant of summary disposition and remand for further
proceedings consistent with this opinion.

                                       I. BACKGROUND

        Plaintiff was employed by defendant for approximately five years. This relationship
ended on November 25, 2015. According to plaintiff, on that day, Diane Shields, defendant’s
Vice President of Human Resources, prepared a disciplinary correction form stating that
plaintiff’s employment would be terminated due to plaintiff’s failure to follow job duties,
excessive absence from work, and failure to treat others with courtesy and respect. Shields,
plaintiff, and a representative of plaintiff’s union met that day to discuss the situation. Shields
informed plaintiff that his employment would be terminated. Shields, however, offered plaintiff
a choice. Defendant could terminate plaintiff, and plaintiff could pursue whatever remedies may
be available to him through the grievance process of the applicable collective bargaining
agreement, or plaintiff could resign. According to plaintiff, defendant offered two inducements
to cause plaintiff to resign: (1) defendant would not challenge plaintiff if he sought
unemployment benefits, and (2) defendant would not disclose the reasons for his discharge to

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potential future employers. Plaintiff chose to resign, and signed a termination agreement that
stated the following:

       Resignation: My resignation from Alpena General Hospital is voluntary. I am
       aware [sic] applicable Hospital policies and procedures, as well as what rights I
       may have under a union contract, and hereby waive any and all of those
       rights/processes I may have, including the right to contest or grieve this or any
       employment action in accordance with that union contract.

        Approximately three months later, plaintiff filed the instant suit. Plaintiff alleged that his
“termination” was the culmination of years of harassment suffered at the hands of plaintiff’s
supervisor and other employees following plaintiff’s reporting of another employee’s workplace
misconduct in August 2012. This employee was terminated for that misconduct, and in litigation
that followed, plaintiff provided deposition testimony detailing the employee’s misconduct.
Plaintiff also alleged that he was coerced into signing the termination agreement by “threats”
made by Shields at the November 25, 2015 meeting. Plaintiff characterized the offers made by
Shields not so much as inducements, but rather, as threats; plaintiff explained that Shields
threatened to challenge any unemployment claims and to disparage his reputation to future
potential employers if defendant did not resign.

        Before any discover, defendant initially moved for summary disposition under MCR
2.116(C)(7). Defendant argued that the termination agreement served as a waiver of the claims
brought by plaintiff in this suit. Defendant also contended that all of plaintiff’s claims hinged on
his ability to demonstrate that he was discharged from his employment by defendant, and that the
termination agreement plainly demonstrated that it was plaintiff’s choice to resign. Plaintiff
responded by arguing that the termination agreement only waived his rights under the CBA and
other internal procedures—not the statutory claims at issue in this suit. Plaintiff further argued
that his resignation was not truly a resignation; rather, he was constructively discharged.

        Ruling on this first motion, the trial court concluded that the termination agreement
served as a waiver of any and all possible claims plaintiff could have against defendant,
including the statutory claims brought by plaintiff in this suit. The trial court, however, asked
plaintiff to file an amended complaint fleshing out his constructive discharge theory.

         Plaintiff did so, and defendant again moved for summary disposition, this time under
MCR 2.116(C)(7) and (C)(10). Defendant argued that by waiving his claims, as the trial court
had already concluded, plaintiff’s complaint necessarily failed, and summary disposition should
be entered pursuant to MCR 2.116(C)(7). Defendant then turned to the constructive discharge
issue. Defendant argued that summary disposition was appropriate pursuant to MCR
2.116(C)(10) because plaintiff signed an agreement stating that his resignation was voluntary.
Defendant argued that regardless of what evidence plaintiff could present, this agreement was
binding and precluded plaintiff from proving anything inconsistent with the agreement’s terms.

         In a written opinion, the trial court characterized plaintiff’s argument regarding
constructive discharge as an argument that plaintiff was under duress when he signed the
termination agreement. The trial court explained that if plaintiff could prove duress, plaintiff


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could avoid the agreement. The trial court, however, found that plaintiff could not prove duress,
and thus, granted summary disposition in favor of defendant. This appeal followed.

                                         II. ANALYSIS

        “We review de novo a trial court’s ruling on a motion for summary disposition.
Similarly, whether contract language is ambiguous is a question of law that we review de novo.
Finally, the proper interpretation of a contract is also a question of law that we review de novo.”
Klapp v United Ins Group Agency, Inc, 468 Mich 459, 463; 663 NW2d 447 (2003) (internal
citations omitted).

        Defendant’s first motion was brought under MCR 2.116(C)(7). Summary disposition is
appropriate under MCR 2.116(C)(7) when the claim is barred by a release of liability. “When it
grants a motion under MCR 2.116(C)(7), a trial court should examine all documentary evidence
submitted by the parties, accept all well-pleaded allegations as true, and construe all evidence
and pleadings in the light most favorable to the nonmoving party.” McLain v Lansing Fire
Dep’t, 309 Mich App 335, 340; 869 NW2d 645 (2014).

       Defendant brought its second motion under MCR 2.116(C)(7) as well as MCR
2.116(C)(10). “A trial court may grant a motion for summary disposition under MCR
2.116(C)(10) when the affidavits or other documentary evidence, viewed in the light most
favorable to the nonmoving party, show that there is no genuine issue as to any material fact and
the moving party is therefore entitled to judgment as a matter of law.” Lowrey v LMPS & LMPJ,
Inc, 500 Mich 1, 5; 890 NW2d 344 (2016).

        The Termination Agreement Did Not Cover Statutory Claims. Plaintiff first argues that
the trial court erred when it found that the waiver in the termination agreement covered the
claims raised in this suit. As this Court explained in Gortney v Norfolk & W R Co, 216 Mich
App 535, 540-541; 549 NW2d 612 (1996):

                The scope of a release is controlled by the intent of the parties as it is
       expressed in the release. If the text in the release is unambiguous, we must
       ascertain the parties’ intentions from the plain, ordinary meaning of the language
       of the release. The fact that the parties dispute the meaning of a release does not,
       in itself, establish an ambiguity. A contract is ambiguous only if its language is
       reasonably susceptible to more than one interpretation. If the terms of the release
       are unambiguous, contradictory inferences become subjective, and irrelevant, and
       the legal effect of the language is a question of law to be resolved summarily.
       [internal citations and quotation marks omitted.]

        Plaintiff argues that the circuit court’s conclusion that the termination agreement
constituted a release of all of his noncontractual claims against defendant was erroneous. Again,
the clause states in its entirety:

               Resignation: My resignation from Alpena General Hospital is voluntary.
       I am aware [sic] applicable Hospital policies and procedures, as well as what
       rights I may have under a union contract, and hereby waive any and all of those


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       rights/processes I may have, including the right to contest or grieve this or any
       employment action in accordance with that union contract.

       After the first sentence, which declares that plaintiff’s resignation is voluntary, the
language of the agreement explains that plaintiff is aware of specific “Hospital policies and
procedures” and “rights [he] may have under a union contract.” The contractual language goes
on to explain that plaintiff is waiving “any and all of those rights/processes [he] may have,
including the right to contest or grieve this or any employment action in accordance with that
union contract.” (Emphasis added.)

        The language is unambiguous. Plaintiff waived only certain rights and processes—”those
rights/processes”—by signing the agreement. The specific rights and processes he waived were
explained in the preceding clause: “applicable Hospital policies and procedures, as well as what
rights [he] may have under a union contract.” Plaintiff did not waive the right to pursue statutory
remedies separate from any claim based on hospital policies or procedures or rights under a
CBA. Had the parties so intended, they could have included broader language, but they did not.
We are bound by the plain language of the termination agreement, which does not include any
reference to statutory claims, and we conclude that plaintiff did not waive his statutory rights
under the termination agreement. Northline Excavating, Inc v Livingston Co, 302 Mich App
621, 628; 839 NW2d 693 (2013). Therefore, the trial court erred by granting defendant’s first
motion for summary disposition.

        Plaintiff May Be Able to Show Constructive Discharge. Plaintiff next argues that the
trial court erred in its holding that plaintiff could not prove, in the face of the termination
agreement, that he was constructively discharged from his employment. We agree.

       There is no genuine issue of material fact that plaintiff resigned from his position with
defendant per the termination agreement. The fact of plaintiff’s resignation, however, does not
necessarily end the inquiry. To be precluded from claiming that he faced an adverse
employment action in the form of termination, not only must the plaintiff have resigned, but that
resignation must have been truly voluntary.

        The doctrine of constructive discharge is a legal fiction created to determine whether a
plaintiff’s facially voluntary resignation was, in actuality, a result of the defendant’s improper
conduct such that the court will consider the resignation to be a de facto involuntary termination
of the plaintiff’s employment. Constructive discharge is not a cause of action in-and-of-itself;
rather, constructive discharge is “a defense that a plaintiff interposes to preclude the defendant
from claiming that the plaintiff voluntarily left employment.” Joliet v Pitoniak, 475 Mich 30, 41;
715 NW2d 60 (2006). “A constructive discharge occurs when an employer deliberately makes
an employee’s working conditions so intolerable that the employee is forced into an involuntary
resignation.” Hammond United of Oakland, Inc, 193 Mich App 146, 151; 483 NW2d 652
(1992). A constructive discharge depends upon the facts of each case and occurs when a
reasonable person in the plaintiff’s position “would have felt compelled to resign” as a result of
the employer’s improper conduct. Jenkins v Southeastern Mich Chapter, American Red Cross,
141 Mich App 785, 796; 369 NW2d 223 (1985).



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        We make several observations pertinent to this case: First, plaintiff does not renew on
appeal his assertion that he resigned under duress, so we do not take up that part of the trial
court’s analysis. Second, plaintiff can show constructive discharge without also showing duress;
while facts relevant to the two concepts may overlap, a plaintiff can show that he was
constructively discharged without also showing that he did so under duress. See, e.g., Handy v
Brownlee, 118 Fed Appx 850, 855 (CA 5, 2004). Third, the mere choice between resignation
and termination alone does not establish that a resignation was involuntary, unless it is also
shown that the employer lacked good cause to believe that there were grounds for the
termination. See Parker v Board of Regents of Tulsa Jr College, 981 F2d 1159, 1162 (CA 10,
1992). Fourth, while the termination agreement is certainly evidence that plaintiff’s resignation
was voluntary, it may not be conclusive in every circumstance, as the very nature of constructive
discharge is that a seemingly voluntary resignation was, in fact, an involuntary discharge in the
face of intolerable conditions. See Manning v City of Hazel Park, 202 Mich App 685, 697-698;
509 NW2d 874 (1993). Fifth, alleged actions taken months or even years before the termination
are unlikely to be relevant to the voluntariness of that termination, as some temporal proximity is
needed to show a causal connection in all but the most extreme cases. See Aho v Department of
Corrections, 263 Mich App 281, 291-292; 688 NW2d 104 (2004). And finally, because an
adverse employment action is a predicate to plaintiff’s claims, if plaintiff’s resignation is truly
voluntary, he cannot maintain a statutory retaliation or discrimination claim based on his leaving
the company. See Vagts v Perry Drug Stores, Inc, 204 Mich App 481, 487; 516 NW2d 102
(1994).

        Here, plaintiff alleged that defendant offered him a choice: he could resign and defendant
would not challenge plaintiff’s receipt of unemployment benefits and would not report
negatively on plaintiff’s employment with defendant to future employers or plaintiff’s
employment would be terminated, defendant would challenge plaintiff’s receipt of
unemployment benefits, and defendant would reveal plaintiff’s shortcomings to plaintiff’s
potential future employers. By these facts, regardless of plaintiff’s choice, he would no longer
be employed by defendant. Plaintiff further alleged that defendant’s purported grounds for
termination were “bogus and pretextual” and that he had no opportunity to reflect on the choice
given or consult an advisor or legal counsel with respect to his rights.

        In Manning, this Court was presented with a similar set of allegations. The plaintiff in
that case was employed by the city of Hazel Park as a “city manager/city clerk.” 202 Mich App
at 688. Following a mayoral change, the position of city manager/city clerk was split into two
positions, and the plaintiff was relieved of her city-clerk duties, with an attendant reduction in
salary. Id. The plaintiff alleged that the mayor and mayor pro tempore met with her three
months later and informed her that they believed that she was drawing a higher salary than was
authorized. Id. According to the plaintiff, the mayor and mayor pro tempore presented her with
the following options: she could resign, retire, or she would be terminated. Id. The plaintiff
asserted that she asked for some time to think about the options, but that her request was
rebuffed. Id. The plaintiff alleged that she “chose to retire because her pension benefits would
be affected if she resigned or was terminated and she would automatically lose her accumulated
sick leave and vacation time if she was terminated.” Id.

      The plaintiff brought various discrimination claims against the city, the mayor, and the
mayor pro tempore. Id. at 689. The trial court granted summary disposition to the defendants on

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each of these claims. See id. On appeal, this Court reversed the trial court’s grant of summary
disposition. Id. at 698-699. The Court concluded that, where the plaintiff was offered a choice
of retiring to protect her benefits or being terminated and losing those benefits, “a juror could
reasonably believe that plaintiff was forced into an involuntary retirement.” Id. at 698.

         Given the case law, we must conclude that, at this early stage of litigation, there remains
a question of fact on whether plaintiff voluntarily left his employment or whether defendant
constructively discharged him. While plaintiff’s signature on the termination agreement may be
evidence that his resignation was voluntary, and the mere choice between resigning and being
terminated is not alone sufficient to show constructive discharge, supra, plaintiff has not had the
opportunity to explore whether defendant lacked good cause to believe that there were grounds
for termination, i.e., whether defendant had good cause to believe that plaintiff failed to follow
job duties, had excessive absences from work, and failed to treat others with courtesy and
respect. When the trial court granted summary disposition to defendant, the parties had not yet
started discovery. Thus, plaintiff should have an opportunity to explore whether he can make a
viable claim for relief based on constructive discharge or, alternatively, defendant may be able to
show after discovery that there is no genuine issue that plaintiff voluntarily resigned or that
plaintiff’s claims fail for a different reason unrelated to his termination. We stress that, to show
that work conditions were so intolerable as to compel a resignation, plaintiff must be able to
show a causal connection between a condition and his resignation, and absent strong evidence to
the contrary, such connection will likely require a close temporal proximity. Defendant is free to
refile a motion for summary disposition at the close of discovery.

        Accordingly, we vacate the trial court’s grant of summary disposition to defendant and
remand the matter for further proceedings consistent with this opinion. We do not retain
jurisdiction.



                                                             /s/ Peter D. O'Connell
                                                             /s/ Joel P. Hoekstra
                                                             /s/ Brock A. Swartzle




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