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Eisterhold v. Diversey Corp.2/6/2001
UNPUBLISHED
Plaintiff appeals as of right from an order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(7) (claim barred by statute of limitations) and MCR 2.116(C)(10) (no genuine issue regarding any material fact and defendants entitled to judgment as a matter of law) regarding his claims under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.; MSA 17.428(1) et seq, and his claim of breach of contract, respectively. We affirm.
Plaintiff is a certified public accountant who began working for Diversey Corporation in 1993. In late 1993 or early 1994, plaintiff discovered what he believed were irregularities in Diversey's payroll tax reporting for one of its divisions. There followed several years of plaintiff documenting these alleged irregularities, with no action taken by those who were informed by plaintiff. In 1996, The Molson Companies sold Diversey to Unilver, and along with another company, would be renamed AmeriClean Systems, Inc. Plaintiff continued to criticize AmeriClean's position regarding tax law compliance, and in March 1996, he declined AmeriClean's offer of employment. On April 14, 1996, plaintiff informed one of the vice- presidents that Diversey was required to disclose its past tax violations to the Internal Revenue Service (IRS), and that if the disclosure was not made, plaintiff intended to inform the IRS. On April 23, 1996, plaintiff was placed on administrative leave and discharged from employment.
Plaintiff filed suit on October 18, 1996, alleging, that he was discharged in violation of the WPA and in violation of public policy, and he alleged in his amended complaint, in part, breach of contract for Diversey's failure to pay plaintiff a performance bonus. The trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(7), with regard to the claim under the WPA, because plaintiff filed this action after the expiration of the ninety- day statute of limitations, and pursuant to MCR 2.116(C)(10), because the trial court found no genuine issue of material fact regarding the existence of a contractual relationship between the parties. Finally, the trial court determined that plaintiff's WPA claim was frivolous and granted defendants' request for costs and attorney fees.
Plaintiff first argues that the trial court erred in granting summary disposition of his WPA claim on the basis that the claim was time barred. The issue whether a claim is within the period of limitation is a question of law, and is reviewed de novo. Jacobson v Parda Federal Credit Union, 457 Mich 318, 324; 577 NW2d 881 (1998). The pleadings, affidavits, admissions, depositions, and documentary evidence filed in the action or submitted by the parties must be considered by the court when ruling on a motion under MCR 2.116(C)(7). MCR 2.116(G)(5).
A civil action under the WPA must be brought within ninety days after the occurrence of the alleged violation of the act. MCL 15.363(1); MSA 17.428(3)(1). In his complaint, the only wrongful conduct that plaintiff alleged under the WPA was defendants' placement of him on administrative leave on April 23, 1996. Plaintiff's original complaint was filed on October 18, 1996. Plaintiff initiated this action well after the expiration of the ninety-day limitations period. Because the sole basis of plaintiff's WPA claim was his discharge on April 1996, plaintiff's claim was time barred.
Plaintiff, however, contends that his claim under the WPA should not be dismissed on the basis of the statute of limitations because of the continuing violations doctrine. Although the continuing violations doctrine applies to claims under the WPA, Phinney v Perlmutter,
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