May 5, 2020


                                                                  Supreme Court

                                                                  No. 2019-113-Appeal.
                                                                  (PC 17-5796)




              Michael Crenshaw                :

                       v.                     :

          State of Rhode Island et al.        :



               NOTICE: This opinion is subject to formal revision before
               publication in the Rhode Island Reporter. Readers are requested to
               notify the Opinion Analyst, Supreme Court of Rhode Island, 250
               Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
               3258 of any typographical or other formal errors in order that
               corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2019-113-Appeal.
                                                                     (PC 17-5796)


              Michael Crenshaw                   :

                       v.                        :

          State of Rhode Island et al.           :


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Robinson, for the Court. The plaintiff, Michael Crenshaw, appeals from a

January 7, 2019 judgment entered in the Providence County Superior Court in favor of the

defendants, the State of Rhode Island and Lieutenant Scott Raynes (State Defendants) and the

Community College of Rhode Island (CCRI), the Council on Postsecondary Education, and

Captain Timothy Poulin (CCRI Defendants),1 pursuant to a grant of both the State Defendants’

motion to dismiss based on Rule 12(b)(6) of the Superior Court Rules of Civil Procedure and the

CCRI Defendants’ motion for judgment on the pleadings based on Rule 12(c). The plaintiff also

appeals from a December 21, 2018 order denying his motion to amend his complaint. This case

came before the Supreme Court for oral argument pursuant to an order directing the parties to show

cause why the issues raised in this appeal should not be summarily decided. After examining the

written and oral submissions of the parties and after a thorough review of the record, we are of the




1
        When appropriate, we shall refer to the State Defendants and the CCRI Defendants
collectively as “the defendants.”



                                                -1-
opinion that cause has not been shown and the appeal may be resolved without further briefing or

argument.

       For the reasons set forth in this opinion, we affirm the judgment and the order of the

Superior Court.

                                                I

                                       Facts and Travel2

       On December 2, 2017, Mr. Crenshaw filed a two-count complaint against the defendants.

On January 10, 2018, Mr. Crenshaw filed an Amended Complaint alleging: (1) that the defendants

terminated him in violation of G.L. 1956 chapter 50 of title 28, the Rhode Island Whistleblowers’

Protection Act (the Act); and (2) that Lieutenant Raynes and Captain Poulin violated 42 U.S.C.

§ 1983 when they “took action against the Plaintiff to prevent him from being continuously

employed by the Defendant due to his participation in a lawsuit with the Town of Southborough

[Massachusetts] and its police department which was a matter of public concern.” We glean the

following facts from Mr. Crenshaw’s Amended Complaint.

       On November 17, 2013, Mr. Crenshaw was hired as a college police officer at CCRI. Prior

to being hired by CCRI, Mr. Crenshaw had been employed as a police officer with the

Southborough Police Department. According to his Amended Complaint, while employed by the

Southborough Police Department, he “reported misconduct and criminal activity involving his

fellow officers and as well as violations of departmental rules and regulations.”       He was

subsequently removed from his position as a police officer in Southborough and later commenced




2
       This Court previously confronted this general factual scenario in Community College of
Rhode Island v. CCRI Educational Support Professional Association/NEARI, 184 A.3d 220 (R.I.
2018), in which we affirmed a Superior Court decision vacating an arbitration award that had
ordered CCRI to reinstate Mr. Crenshaw to his previous position and compensate him for lost time.


                                              -2-
an action against that police department in the United States District Court for the District of

Massachusetts.

       Mr. Crenshaw alleged in his Amended Complaint in the instant case that he “frankly, and

repeatedly told the Defendants” about his whistleblower activity concerning the Southborough

Police Department as well as his federal court lawsuit. Based on the record before us, it is clear

that, during his employment with CCRI, Mr. Crenshaw submitted an application to the Rhode

Island Municipal Police Training Academy (the Training Academy), in which he sought to obtain

a waiver from the job requirement that he complete the Training Academy curriculum. Captain

Poulin, a police officer at CCRI, also submitted information in support of Mr. Crenshaw’s request

for a waiver. Mr. Crenshaw has alleged that the information submitted by Captain Poulin included

documents from the Southborough Police Department that were purportedly false.

       In response to Mr. Crenshaw’s waiver request, Lieutenant Raynes, the then-Executive

Director of the Training Academy, sent a letter to CCRI setting forth some concerns that the

Training Academy had noted with respect to Mr. Crenshaw’s waiver request. On November 5,

2014, Captain Poulin met with Mr. Crenshaw and discussed with him the concerns raised in the

letter from Lieutenant Raynes.     According to Mr. Crenshaw’s Amended Complaint, CCRI

terminated his employment “on December 5, 2014 because he was allegedly denied a waiver to

attending the police academy by Lt. Scott Raynes.”

       Mr. Crenshaw further alleged that, prior to his termination, he requested a copy of the

information which Captain Poulin had submitted in support of the waiver request, but he was not

supplied with said information until January 25, 2015. Additionally, according to the Amended

Complaint, on January 10, 2017, Lieutenant Raynes sent Mr. Crenshaw a letter admitting that he




                                               -3-
had previously provided CCRI with a fraudulent document, which CCRI relied upon in its decision

to terminate Mr. Crenshaw.

       On March 7, 2018, the State Defendants filed a motion to dismiss the Amended Complaint

pursuant to Rule 12(b)(6). In a bench decision rendered on June 29, 2018, the hearing justice

granted the State Defendants’ motion to dismiss only as to Count One of the Amended Complaint.

The hearing justice held that Mr. Crenshaw failed to state a claim under the Act because that Act

“refers to a current employee reporting a current employer for a current violation of the local,

federal, or state law.” On July 26, 2018, an order entered reflecting the hearing justice’s decision

and also indicating that Mr. Crenshaw had voluntarily dismissed Count Two as to the State

Defendants.3

       On June 14, 2018, prior to the hearing on the State Defendants’ motion to dismiss, Mr.

Crenshaw had filed a motion to further amend his complaint. Specifically, Mr. Crenshaw sought

to amend Count Two of the Amended Complaint to allege that the defendants violated 42 U.S.C.

§ 1983 by taking action “to prevent him from being continuously employed by the Defendant due

to his whistleblowing activity * * *.” On November 29, 2018, the hearing justice conducted a

hearing on Mr. Crenshaw’s motion to amend. After hearing the arguments of counsel, the hearing

justice denied Mr. Crenshaw’s motion to amend, holding “that the proposed second amended

complaint is time barred and, therefore, futile.” An order entered reflecting that ruling on

December 21, 2018.




3
        The record indicates that Mr. Crenshaw opted not to pursue Count Two of his Amended
Complaint because the lawsuit against the Southborough Police Department, which he alleged was
the basis of his termination from CCRI, was not filed until after his termination on December 5,
2015.


                                                -4-
       On December 4, 2018, the CCRI Defendants, invoking Rule 12(b)(6), had filed a motion

to dismiss the Amended Complaint as it pertained to them. The CCRI Defendants contended that

the hearing justice should grant their Rule 12(b)(6) motion on the same basis as she had relied

upon in granting the State Defendants’ motion to dismiss. On January 2, 2019, the hearing justice

conducted a hearing, during which she converted the CCRI Defendants’ Rule 12(b)(6) motion to

dismiss into a motion for judgment on the pleadings pursuant to Rule 12(c) in light of the fact that

the CCRI Defendants had filed an answer to the Amended Complaint. Following the same

reasoning as articulated in her previously rendered bench decision relating to the State Defendants,

the hearing justice granted the CCRI Defendants’ Rule 12(c) motion as to Count One of the

Amended Complaint.       She also granted the CCRI Defendants’ motion as to Count Two.

Thereafter, judgment entered in favor of the defendants on January 7, 2019, and Mr. Crenshaw

timely appealed. On appeal, Mr. Crenshaw argues that the hearing justice erred in: (1) dismissing

his claim under the Act as to both the State Defendants and the CCRI Defendants; and (2) denying

his motion to amend his complaint.

                                                 II

                                       Standard of Review

        This Court reviews a hearing justice’s decision to grant a motion to dismiss pursuant to

Rule 12(b)(6) by applying “the same standard as the hearing justice.” Ho-Rath v. Rhode Island

Hospital, 115 A.3d 938, 942 (R.I. 2015) (internal quotation marks omitted). Accordingly, “[s]uch

a motion is properly granted when it is clear beyond a reasonable doubt that the plaintiff would

not be entitled to relief from the defendant under any set of facts that could be proven in support

of the plaintiff’s claim.” Goodrow v. Bank of America, N.A., 184 A.3d 1121, 1125 (R.I. 2018)

(internal quotation marks omitted). In applying this standard, “[w]e will assume[] the allegations




                                                -5-
contained in the complaint to be true and view [] the facts in the light most favorable to the

plaintiff[].” Id. (internal quotation marks omitted). Also, our review of the granting of a Rule 12(c)

motion is governed by the principle that “[a] Rule 12(c) motion is tantamount to a Rule 12(b)(6)

motion, and the same test is applicable to both * * *.” Chase v. Nationwide Mutual Fire Insurance

Company, 160 A.3d 970, 973 (R.I. 2017) (internal quotation marks omitted).

        With respect to a hearing justice’s decision to grant or deny a motion to amend a complaint,

“we afford great deference to the trial justice’s ruling * * *.” Harodite Industries, Inc. v. Warren

Electric Corporation, 24 A.3d 514, 529 (R.I. 2011) (internal quotation marks omitted). As such,

“we will not disturb [the] ruling unless the hearing justice committed an abuse of discretion.” Id.

(internal quotation marks omitted).

                                                 III

                                              Analysis

                                                  A

                                      The Motions to Dismiss

        The issue of whether the protections of the Act extend to an employee who, while employed

by a previous employer which has no nexus to the defendant employer in the present action,

reported illegal conduct allegedly committed by that previous employer is one of first impression

for this Court.

       It is well established that we review “questions of statutory interpretation de novo.” Epic

Enterprises LLC v. Bard Group, LLC, 186 A.3d 587, 589 (R.I. 2018) (internal quotation marks

omitted). And, “when the language of a statute is clear and unambiguous, this Court must interpret

the statute literally and must give the words of the statute their plain and ordinary meanings.”

Alessi v. Bowen Court Condominium, 44 A.3d 736, 740 (R.I. 2012) (internal quotation marks




                                                 -6-
omitted); see also Little v. Conflict of Interest Commission, 121 R.I. 232, 237, 397 A.2d 884, 887

(1979) (“It is a primary canon of statutory construction that statutory intent is to be found in the

words of a statute, if they are free from ambiguity and express a reasonable meaning.”). However,

when faced with an ambiguous statute, “it is incumbent upon us to ‘apply the rules of statutory

construction and examine the statute in its entirety to determine the intent and purpose of the

Legislature.’” Powers v. Warwick Public Schools, 204 A.3d 1078, 1086 (R.I. 2019) (quoting State

v. Diamante, 83 A.3d 546, 548 (R.I. 2014)).

       Mr. Crenshaw contends that, in dismissing his claim under the Act, the hearing justice

construed § 28-50-3 too narrowly. Specifically, he argues that nothing in the statute requires that,

in order to qualify as protected whistleblowing activity, the report of illegal activity must be made

about the activities of the particular employer relative to which the Act’s protection is sought. In

response, the State Defendants argue that the hearing justice did not err because, they contend,

“[t]he clear and unambiguous language of the statute does not extend protection to an employee

who previously ‘reported’ the misconduct of a past employer.” Similarly, the CCRI Defendants

argue that the Act “cannot extend to activities which occurred while at a previous employer.”

       Mr. Crenshaw asserts that he engaged in protected activity as described in § 28-50-3(1)

and (3) when he reported violations of law allegedly committed by the Southborough Police

Department. Accordingly, we will focus our analysis on those two statutory provisions.

       Section 28-50-3 provides:

               “An employer shall not discharge, threaten, or otherwise
               discriminate against an employee regarding the employee’s
               compensation, terms, conditions, location, or privileges of
               employment:

                       “(1) Because the employee, or a person acting on behalf of
                       the employee, reports or is about to report to a public body,
                       verbally or in writing, a violation which the employee knows



                                                -7-
                       or reasonably believes has occurred or is about to occur, of
                       a law or regulation or rule promulgated under the law of this
                       state, a political subdivision of this state, or the United States
                       * * * or

                       “***

                       “(3) Because an employee refuses to violate or assist in
                       violating federal, state or local law, rule or regulation, or

                       “ * * *.”

While § 28-50-3 clearly provides protection to an employee who reports a violation of certain laws

(and regulations or rules) to a public body or refuses to participate in such a violation, it does not

precisely indicate the identity of the employer named as the subject of such a report. Therefore,

as we are faced with this statutory silence and consequent ambiguity, we will look to the principles

of statutory construction in order to ascertain the intent of the General Assembly in this regard.

See Powers, 204 A.3d at 1086.4 Accordingly, we will seek to exegete the language of the statute

while examining public policy considerations that underlie whistleblowers’ protection statutes

such as the Act in order to ascertain the intent and purpose of § 28-50-3 as enacted by the General

Assembly. Tanner v. Town Council of Town of East Greenwich, 880 A.2d 784, 796 (R.I. 2005)

(“[O]ur purpose is to determine and effectuate the Legislature’s intent and [] attribute to the

enactment the meaning most consistent with its policies or obvious purposes.”) (internal quotation

marks omitted).



4
        We are of one mind with the following observation by the United States Court of Appeals
for the First Circuit made when called upon to interpret § 28-50-3:

               “Our task is complicated by the lack of guideposts. There is no
               relevant legislative history indicating the intent of Rhode Island
               lawmakers concerning the interpretation of these terms.
               Furthermore, Rhode Island courts have not directly interpreted
               ‘report’ * * * under the statute.” Marques v. Fitzgerald, 99 F.3d 1,
               4 (1st Cir. 1996).


                                                 -8-
        We first note that the language of § 28-50-3 defining an employee’s protected activity

employs the present tense. For example, § 28-50-3(1) provides that an employer may not

discriminate against an employee “[b]ecause the employee * * * reports or is about to report” a

violation of law. (Emphasis added.) Similarly, § 28-50-3(3) provides that an employer may not

discriminate “[b]ecause an employee refuses to violate or assist in violating federal, state or local

law, rule or regulation * * *.” (Emphasis added.) In our view, the General Assembly’s deliberate

choice to speak in the present tense rather than the past tense is indicative of a legislative intent to

protect activity that occurs while the employee is in the employ of his or her present employer or

his or her immediately preceding employer.

        Moreover, it is noteworthy that “[s]everal states have enacted whistleblower protection

statutes to shield employees from retaliation.” What Constitutes Activity of Public or State

Employee Protected Under State Whistleblower Protection Statute Covering Employee’s

“Report,” “Disclosure,” “Notification,” or the Like of Wrongdoing—Nature of Activity Reported,

37 A.L.R. 6th 137 (2008). “Laws protecting whistleblowers are meant to encourage employees to

report illegal practices without fear of reprisal by their employers. * * * [Such provisions]

encourage[] employees to report suspected wrongdoing to the proper authorities in order to expose

the wrongdoing, to prevent further wrongdoing, and to aid in the investigation and prosecution of

the wrongdoers.” 82 Am. Jur. 2d Wrongful Discharge § 112 (Feb. 2020 Update). Thus, allowing

an employee to obtain protection from a current employer for having reported the allegedly illegal

activity of a previous employer with which the current employer has no de facto or de june

involvement would not further such purposes.            For example, in Mr. Crenshaw’s case, the

defendants had no motive to retaliate against him for whistleblowing, as he did not report any

illegal activity committed by said defendants or by any entity with which they had any nexus.




                                                  -9-
Additionally, the defendants would clearly be unable to prevent further (hypothetical) wrongdoing

by the Southborough Police Department, which is obviously an entity that is entirely unrelated to

CCRI.

        It is further instructive to consider how similar whistleblower statutes have been construed

in other jurisdictions. For example, the Supreme Judicial Court of Maine has held that “[the

relevant statutory provisions of Maine’s Whistleblowers’ Protection Act], when read together,

unambiguously limit the protection afforded by the [statute] to (1) employees (2) who report to an

employer (3) about a violation (4) committed or practiced by that employer.”5 Costain v. Sunbury

Primary Care, P.A., 954 A.2d 1051, 1054 (Me. 2008) (emphasis added) (footnote omitted). In

Costain, the court addressed whether Maine’s Whistleblowers’ Protection Act extended protection

to an employee who, prior to her employment with the defendant, participated in an investigation

of a doctor who had been employed by the defendant at the time of the investigation. Id. at 1052.

The court concluded that the statute did not provide such protection. Id. at 1054. This conclusion

is consistent with the purpose of Rhode Island’s Whistleblowers’ Protection Act—namely, to

encourage employees to report violations of law in the workplace and to prevent employers from

retaliating against employees who choose to do so.

        Similarly to the plaintiff in Costain, Mr. Crenshaw is seeking protection based on activity

that occurred prior to his employment with CCRI. It is our view that there is even less reason to

extend the protections of Rhode Island’s Whistleblowers’ Protection Act to Mr. Crenshaw’s

activity in Southborough than there was to the plaintiff’s activity in Costain because, unlike the




5
        We are aware that Maine’s Whistleblowers’ Protection Act differs slightly from Rhode
Island’s Whistleblowers’ Protection Act in that it requires an employee to report a violation to a
supervisor prior to reporting it to a public body, except in very limited circumstances. See 26
M.R.S.A. § 833. However, this difference in the statutes is irrelevant for our purposes.


                                               - 10 -
plaintiff in Costain, Mr. Crenshaw’s report of allegedly illegal activity involved an entity

completely separate from the entities that are the defendants in the instant case. As both the State

Defendants and the CCRI Defendants point out, if we were to interpret the Act in the manner that

Mr. Crenshaw suggests, any employee who reports unlawful activity about an employer would

have a potential claim under the Act against all future employers who become aware of the past

report, regardless of whether or not the later-in-time employer has any connection to the employer

to which the report actually pertained. Based on the language and purpose of the Act, we conclude

that the protections of the Act are limited to activities that occurred while the employee was still

employed by the defendant employer or one in close nexus with it.

       Mr. Crenshaw relies primarily on a case from an intermediate appellate court in another

jurisdiction—namely, the Court of Appeals of Michigan. That court held that “[t]here is absolutely

nothing, express or implied, in the plain wording of [Michigan’s Whistleblowers’ Protection Act]

that limits its applicability to violations of law by the employer or to investigations involving the

employer.” Kimmelman v. Heather Downs Management Ltd., 753 N.W.2d 265, 269 (Mich. Ct.

App. 2008) (emphasis in original). However, that case is distinguishable from the instant case,

and we decline to adopt its reasoning. In Kimmelman, the plaintiff’s complaint alleged that he was

terminated because, while he was employed by the defendant, he participated in a criminal

investigation into a sexual assault committed by one of the defendant corporation’s co-owners. Id.

at 267-68. The intermediate appellate court in that case held that the plaintiff’s activities were

protected under Michigan’s Whistleblowers’ Protection Act because nothing in the statute required

that “the criminal investigation had any connection to his employer or to his employment.” Id. at

270. In the case at bar, the activity that Mr. Crenshaw contends is protected under Rhode Island’s

Whistleblowers’ Protection Act occurred prior to his employment with CCRI and, more




                                                - 11 -
importantly, involved the Southborough Police Department—an entity that indisputably has no

nexus to CCRI whatsoever. Although, as is the case here, the protected activity in Kimmelman

was not related to the plaintiff’s employment with the defendant, the illegal activity involved an

owner of the defendant, a person who clearly had control over the activities of the employer.

       In sum, we hold that the hearing justice correctly concluded that Mr. Crenshaw failed to

state a valid claim under the Act because the actions alleged in his Amended Complaint do not

qualify as protected activity under § 28-50-3.       Specifically, Mr. Crenshaw’s activity is not

protected under the Act because the activity occurred while Mr. Crenshaw was not employed by

the defendants and involved violations of law allegedly committed by a previous employer—an

entity that has no nexus with his employment at CCRI.

                                                 B

                                        Motion to Amend

       Mr. Crenshaw also argues that the hearing justice erred in denying his motion to amend his

complaint because, in his view, she incorrectly concluded that his claim under 42 U.S.C. § 1983

is barred by the statute of limitations. Specifically, Mr. Crenshaw argues that his claim relates

back to his original complaint filed on December 2, 2017 and that the statute of limitations should

be tolled under the discovery rule. In Mr. Crenshaw’s view, the statute of limitations did not begin

to accrue until January 25, 2015 as to Captain Poulin and January 10, 2017 as to Lieutenant Raynes

because he could not have known of these defendants’ purported wrongdoing until those dates.

       “The question of whether a statute of limitations has run against a plaintiff[’]s claim is

* * * a question of law, which this Court reviews de novo.” Ho-Rath, 115 A.3d at 942-43 (internal

quotation marks omitted). The parties agree that the applicable statute of limitations as to Mr.

Crenshaw’s claim under 42 U.S.C. § 1983 is three years. Additionally, at oral argument, Mr.




                                               - 12 -
Crenshaw’s counsel conceded that, if the discovery rule does not apply, Mr. Crenshaw’s claim is

time-barred because, at the meeting with Captain Poulin on November 5, 2014, he learned that his

waiver request to the Training Academy had been denied. Thus, the only issue before us is whether

or not the discovery rule applies.

        The general rule is that “a cause of action accrues and the applicable statute of limitations

begins to run at the time of the injury to the aggrieved party.” Boudreau v. Automatic Temperature

Controls, Inc., 212 A.3d 594, 600 (R.I. 2019) (internal quotation marks omitted). However, in

certain, very limited circumstances, “when the fact of the injury is unknown to the plaintiff when

it occurs, the applicable statute of limitations will be tolled and will not begin to run until, in the

exercise of reasonable diligence, the plaintiff should have discovered the injury or some injury-

causing wrongful conduct.” Id. (internal quotation marks omitted). It is our view that the instant

case does not constitute one of those limited circumstances.

        Even if Mr. Crenshaw did not definitively find out about the conduct which he alleged was

wrongful until, at the latest, January 10, 2017, he was aware of the alleged injury on November 5,

2014, when he was informed that the Training Academy had denied his waiver request. Therefore,

we hold that the discovery rule is not applicable to this case and, even if it were to apply, it would

not save Mr. Crenshaw’s claim. See id. (holding that the discovery rule did not apply to the

plaintiff’s claims because the “plaintiff knew of his alleged injury underlying his * * * claims at

the time he was arrested”). Moreover, based on his Amended Complaint, Mr. Crenshaw was at

least aware of a potential claim against the defendants as he alleged that, “[p]rior to his termination,

[he] requested a copy of his personnel file from Defendant CCRI and all of the information that

was submitted in support of his waiver.” See Behroozi v. Kirshenbaum, 128 A.3d 869, 873 (R.I.




                                                 - 13 -
2016) (holding that the plaintiff was at least aware of a potential malpractice claim because she

“continuously questioned [the attorney] about the adequacy of his representation”).

       Because we agree with the hearing justice that Mr. Crenshaw’s claim under 42 U.S.C.

§ 1983 is barred by the statute of limitations, it follows that she did not abuse her discretion in

denying his motion to amend his complaint as futile.

                                                IV

                                           Conclusion

       For the reasons set forth in this opinion, we affirm the judgment and the order of the

Superior Court. The record may be returned to that tribunal.




                                               - 14 -
STATE OF RHODE ISLAND AND                                   PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        Michael Crenshaw v. State of Rhode Island et al.
                                     No. 2019-113-Appeal.
Case Number
                                     (PC 17-5796)
Date Opinion Filed                   May 5, 2020
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice William P. Robinson III

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Melissa A. Long
                                     For Plaintiff:

                                     Sonya L. Deyoe, Esq.
                                     For Defendants:
Attorney(s) on Appeal
                                     Jeffrey S. Michaelson, Esq.

                                     Mariana E. Ormonde
                                     Department of Attorney General




SU-CMS-02A (revised June 2016)
