Colleen Bodnar v. St John Providence Inc

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

COLLEEN BODNAR, GREG BOZIMOWSKI, FOR PUBLICATION

CAROL BURKE, GLENDA CALVIN, KEVIN March 5, 2019

CARDWELL, LESLIE CARDWELL, ANDREA 9:00 a.m.

CHELOTTI, JANA CHRUMKA, JOHN

CIROCCO, CECILIA DURONIO, SHARON

ESGUERRA, MARIANNA FLATT, MARIA

GAMBLE, CHERYL ROBB-GENEVICH, KIM

GLANDA, BECCA GRAHAM, MARY

MARGARET GULOWSKI, ANGELIQUE

GWIN, CHRISTYNE ISON, STEVE KISH,

HEATHER KWIATKOWSKI, ROBERT LOSEY,

KATHLEEN MCNELIS, JESSICA MAST, GREG

O’DELL, OSCAR ONG, CHRISTINA POTKAY,

KIMBERLY RAFFLER, BRUCE REED, NANCY

RICHARDS, KSENIA SCEKIC, SARAH SIMS,

CINDY THORNE, KELLY TRETHEWEY,

YOLANDA WILKINS, MARIE WILLIAMS,

SHEILA WILLIAMSON, KENNETH ANDREW

WILLARD, and RUTHANNE WIRTH,

Plaintiffs-Appellants/Cross-

Appellees,

and

TRACY CHASE,

Plaintiff/Cross-Appellee,

v No. 337615

Oakland Circuit Court

ST. JOHN PROVIDENCE, INC. and LC No. 2016-152330-CB

ASCENSION HEALTH,

Defendants-Appellees/Cross-

Appellants.

Before: SHAPIRO, P.J., and SERVITTO and GADOLA, JJ.

GADOLA, J.

Plaintiffs appeal as of right the trial court’s opinion and order granting summary

disposition in favor of defendants St. John Providence, Inc. (St. John) and Ascension Health

(Ascension). Defendants, in turn, cross-appeal the trial court’s denial of their motion to strike

certain evidence pertaining to proceedings before the Michigan Unemployment Insurance

Agency (MUIA). We affirm the trial court’s opinion and order in its entirety.

I. FACTS

Plaintiffs are certified registered nurse anesthetists (CRNAs) formerly employed by St.

John at hospitals located in Southfield and Novi, Michigan. Ascension is the parent company of

St. John. According to plaintiffs’ complaint, due to alleged financial losses, defendants elected

in late 2014 to outsource St. John’s anesthesiology services and began to negotiate the formation

of PSJ Anesthesia, P.C. (PSJ), a separate entity providing these services. Plaintiffs allege that in

August 2015, defendants contracted with PSJ to transition the employment of St. John’s CRNAs

directly to PSJ. In October 2015, plaintiffs were notified of the transition plan and of the fact

that all CRNAs would cease to be employed by St. John effective December 31, 2015. On or

about October 30, 2015, PSJ extended employment offers to the St. John CRNAs, including

plaintiffs; however, many of the benefits and premiums to which plaintiffs had been entitled

while employed by St. John were either reduced or eliminated.

Plaintiffs declined PSJ’s offers of employment on the ground that the offers did not

constitute comparable jobs providing commensurate compensation and benefits. Under two

employment policies revised and effectuated by St. John in May 2015, the Staff Reduction In

Force/Workforce Transition Policy (the RIF Policy) and the Severance Pay and Benefits for Staff

(Non-Management) Associates (the Severance Pay Policy), employees who were given notice of

position elimination would be required, over a six-month period, to apply for vacant comparable

jobs within St. John and would receive priority consideration to interview for such jobs. Eligible

employees would be entitled to severance pay and benefits if their positions were eliminated and

no comparable jobs were available throughout St. John or Ascension. However, failure to apply

or rejection of a comparable job offer would render an employee ineligible to receive severance.

“Comparable jobs” were defined as positions within at least 80% of the employee’s current pay

rate. Under the terms of the policies, plaintiffs maintained that they had not been offered

comparable jobs and were therefore entitled to severance pay and benefits, as well as to

continued employment and compensation for a six-month period.

Maintaining that plaintiffs had declined PSJ’s comparable job offers, defendants refused

to pay severance and terminated plaintiffs’ employment effective December 31, 2015. Plaintiffs

subsequently initiated the present action, advancing claims for breach of contract, promissory

estoppel, and statutory and common-law conversion. In lieu of an answer, defendants filed

separate motions for summary disposition under MCR 2.116(C)(8) and (C)(10). St. John argued

that (1) the RIF Policy and the Severance Pay Policy did not constitute binding contracts in light

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of certain disclaimer language; (2) the plaintiffs were not entitled to severance pay under the

policies because they refused comparable job offers; (3) the policies did not set forth a clear and

definite promise giving rise to a promissory estoppel claim; and (4) plaintiffs had no vested right

to severance, thereby undermining any conversion claim. Ascension asserted the same grounds

but additionally maintained that it was not a proper party to the litigation, as a corporate parent is

generally not liable for the acts of its subsidiary. Defendants also jointly filed a motion to strike

from the record certain documents pertaining to unemployment proceedings before the MUIA,

arguing they were inadmissible under MCL 421.11.

The trial court granted summary disposition in favor of defendants and dismissed each of

plaintiffs’ claims. The trial court also denied defendants’ motion to strike, given that it accorded

those materials no weight in light of their minimal probative value. Plaintiffs now appeal the

trial court’s opinion and order granting defendants’ motions for summary disposition, while

defendants appeal the trial court’s order denying their motion to strike.

II. ANALYSIS

A. STANDARD OF REVIEW

This Court reviews a trial court’s ruling on a motion for summary disposition de novo.

Kendzierski v Macomb Co, 319 Mich App 278, 281; 901 NW2d 111 (2017). Although not

clearly specified in the opinion, the trial court appears to have granted summary disposition

under MCR 2.116(C)(10), as it determined that plaintiffs failed to raise any material issues of

fact. See Cuddington v United Health Servs, Inc, 298 Mich App 264, 270; 826 NW2d 519

(2012). On appeal, however, we apply the standard of review applicable under MCR

2.116(C)(8). See Detroit News, Inc v Policemen & Firemen Retirement Sys of City of Detroit,

252 Mich App 59, 66; 651 NW2d 127 (2002) (“If summary disposition is granted under one

subpart of the court rule when it was actually appropriate under another, the defect is not fatal

and does not preclude appellate review as long as the record permits review under the correct

subpart.” (quotation marks and citation omitted)).

Summary disposition is appropriately granted under MCR 2.116(C)(8) when the

opposing party has failed to state a claim upon which relief may be granted. Dalley v Dykema

Gossett, PLLC, 287 Mich App 296, 304; 788 NW2d 679 (2010). A motion under MCR

2.116(C)(8) tests the legal sufficiency of a complaint on the basis of the pleadings alone. Id. All

well-pleaded factual allegations are to be accepted as true and are to be construed in the light

most favorable to the nonmoving party. Johnson v Pastoriza, 491 Mich 417, 435; 818 NW2d

279 (2012). A party may not support a motion under MCR 2.116(C)(8) with documentary

evidence such as affidavits or depositions. Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d

879 (1994). However, when an action is premised on a written contract, the contract generally

must be attached to the complaint and thus becomes part of the pleadings. Laurel Woods

Apartments v Roumayah, 274 Mich App 631, 635; 734 NW2d 217 (2007); see also MCR

2.113(F).

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B. BREACH OF CONTRACT

1. EXISTENCE OF A CONTRACT

Whether a contract exists is a question of law to be determined de novo. Kloian v

Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006). Fundamentally, a

contract is a promise or set of promises for which the law recognizes a remedy in the event of a

breach of those promises. 1 Restatement Contracts, 2d § 1, p 5. A promise, in turn, is “a

manifestation of intention to act or refrain from acting in a specified way, so made as to justify a

promisee in understanding that a commitment has been made.” Id. at § 2, p 8. The elements of a

contract include: “parties competent to contract, a proper subject matter, legal consideration,

mutuality of agreement, and mutuality of obligation.” Mallory v City of Detroit, 181 Mich App

121, 127; 449 NW2d 115 (1989). In order for a contract to be formed, there must be an offer and

acceptance, as well as a mutual assent to all essential terms, Kloian, 273 Mich App at 452-453,

to be judged by an objective standard based on the express words of the parties and not on their

subjective state of mind, Kamalnath v Mercy Memorial Hosp Corp, 194 Mich App 543, 548; 487

NW2d 499 (1992).

It is well-settled under Michigan law that an employer’s statement of policy contained in

a manual or handbook can give rise to contractual obligations under certain circumstances. See

Dumas v Auto Club Ins Ass’n, 437 Mich 521, 529; 473 NW2d 652 (1991). In one of the earliest

“policy cases” concerning a severance pay policy, Cain v Allen Electric & Equip Co, 346 Mich

568, 570-571; 78 NW2d 296 (1956), the employer instituted a “termination pay policy”

providing that certain employees with 5 to 10 years of employment would be entitled to two

months of pay should their employment be terminated. Two days after the plaintiff gave notice

of his voluntary resignation, the employer terminated his employment, effective immediately.

Id. at 571. Applying traditional principles of contract law, the Supreme Court considered the

employer’s unequivocal announcement that it would conduct itself in a particular manner with

respect to severance pay and determined it was not a “mere gratuity” that could be withdrawn but

rather amounted to an offer upon which the plaintiff could reasonably rely. Id. at 579. The

Supreme Court further reasoned that the plaintiff accepted the offer by continuing his

employment beyond the five-year period specified in the policy. Id. at 580. Though the policy

was subject to change or amendment, the Supreme Court stated that the employer nonetheless

could not deny “contract rights gained through acceptance of an offer.” Id.

Similarly, in the context of wrongful termination, in Toussaint v Blue Cross & Blue

Shield of Mich, 408 Mich 579, 597-598; 292 NW2d 880 (1980), the Michigan Supreme Court

enforced a provision in an employer’s personnel policy manual stating that employees could be

discharged “for just cause only.” The plaintiff, who had specifically inquired regarding job

security upon his hiring, was told he would have employment “as long as [he] did [his] job” and

was given a copy of an employment manual stating the company’s just-cause termination policy.

Our Supreme Court held that the just-cause termination policy was enforceable under two

theories. Under the first theory, grounded in contract law, the Supreme Court began its analysis

by examining the content of the negotiations and the resulting express agreement. Id. at 612-

613. The court concluded that the plaintiff’s testimony that he had specifically negotiated with

the employer regarding job security, along with the employer’s oral assurances, permitted a

rational trier of fact to conclude that those assurances and the policy manual became part of the

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plaintiff’s express contract of employment. Id. Under the second theory, grounded in public

policy, the Supreme Court held that an employee’s “legitimate expectations” premised on an

employer’s written policy statements gave rise to enforceable contractual rights. Id. at 615.

Our Supreme Court has expressly declined to extend the legitimate expectations theory

beyond the context of wrongful discharge and into the arena of compensation policies. Dumas,

437 Mich at 529. Although cases such as Cain enforced written policy statements as contractual

obligations outside the wrongful discharge context, the Supreme Court reasoned that they did so

under traditional principles of contract law. Id. at 530. The court further noted that if the

legitimate expectations theory were to be broadly applied to all domains governed by

employment policies, “then each time a policy change took place contract rights would be called

into question. The fear of courting litigation would result in a substantial impairment of a

company’s operations and its ability to formulate policy.” Id. at 531. Thus, in light of this

precedent, any obligations flowing from the policies presently at issue must derive from

traditional principles of contract law rather than from plaintiffs’ legitimate expectations based on

the policies at issue.

In the present case, St. John effectuated both its RIF Policy and its Severance Pay Policy

in May 2015. According to the Severance Pay Policy, it superseded any conflicting policies or

procedures but was to be “administered in conjunction with [the RIF Policy]. Where differences

exist, this policy takes priority for those eligible for coverage.” The Severance Pay Policy set

forth St. John’s general intent to provide severance pay and benefits to associates “when a

position is eliminated and a comparable job is not available” through St. John or Ascension, as

well as a method for calculating severance pay and benefits.

The RIF Policy outlined the specific procedures to be implemented in the event of a

reduction in force, including notification of position elimination and the process for

reassignment. Under the RIF Policy, all affected associates were required to apply for vacant

“comparable jobs” in order to become eligible for severance pay, and rejection of a comparable

job offer would render them ineligible. Affected associates would additionally be entitled to

“priority consideration” for vacant comparable jobs for a six-month “placement period” from the

date of notification of job elimination. However, the RIF Policy also included the following

disclaimer as part of its general “Policy Statement” near the beginning of the document:

St. John Providence is an “at-will” employer. This means that no associate has a

guarantee of employment for any definite duration of time. In addition, no

associate is guaranteed that they will only be removed from employment if there

is just cause for their removal. Any associate may be removed at any time and for

any or no reason. As such, this policy provides guidelines only and does not

constitute a contract of any type, or guarantee of continued employment in any

position for any duration. [(Emphasis added).]

The disclaimer language in the RIF Policy plainly conveys St. John’s intent not to be

contractually bound by either the RIF Policy or the Severance Pay Policy, and thus distinguishes

the present case from the outcomes reached in Cain and Toussaint. Although the Severance Pay

Policy did not independently incorporate any disclaimer of contractual intent, it was promulgated

along with the RIF Policy and specified that it was to be “administered in conjunction with” the

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RIF Policy, except in instances when the two policies conflicted. Because the Severance Pay

Policy does not contain any provision that conflicts with the disclaimer in the RIF Policy, the

disclaimer applies with equal force to both policies.

Our dissenting colleague contends that the disclaimer is limited in scope to a mere

disavowal of a contractual guarantee of just-cause employment rather than a general disclaimer

of any contractual guarantees whatsoever. To the contrary, read in context, this provision is

contained within a generalized “Policy Statement” setting forth principles governing the entire

document. Indeed, other provisions within this section include St. John’s overall endeavor to

“minimize the impact on associates,” to “generally follow the procedures described in this

policy,” and to establish a Policy Review Committee. A broader interpretation is also supported

by the plain language of the disclaimer, which states, “this policy provides guidelines only and

does not constitute a contract of any type . . . .” By its own terms, the disclaimer unambiguously

applies to “this policy” rather than to “this provision” and specifies that it does not represent a

contract “of any type.” To limit the scope would be to nullify this plain language. See McCoig

Materials, LLC v Galui Constr, Inc, 295 Mich App 684, 694; 818 NW2d 410 (2012) (“Every

word, phrase, and clause in a contract must be given effect, and contract interpretation that would

render any part of the contract surplusage or nugatory must be avoided.”). The disclaimer

therefore disavows the intent that any portion of the policies creates a contractual obligation.

Though not binding in the compensation policy context, wrongful discharge caselaw

employing the legitimate expectations analysis has reached the same result when a policy

contained a disclaimer. In Lytle v Malady (On Rehearing), 458 Mich 153, 162; 579 NW2d 906

(1998), the plaintiff sought to enforce a provision in an employee handbook stating that no

employee would be terminated “without proper cause or reason.” The handbook, however, also

incorporated a disclaimer stating it was “not intended to establish, and should not be interpreted

to constitute any contract . . . .” Id. The employer later revised the handbook by including an

additional disclaimer reserving the right to terminate employees without assigning cause. Id. In

applying the legitimate expectations analysis, our Supreme Court held:

We find this policy is insufficient to overcome the strong presumption of

employment at will, particularly where the original handbook also provided that

“[t]he contents of this booklet are not intended to establish . . . any contract

between . . . [the employer] and any employee, or group of employees.” This

contractual disclaimer clearly communicated to employees that the employer did

not intend to be bound by the policies stated in the handbook. At the very least,

we find the disclaimer renders the “proper cause” statement too vague and

indefinite to constitute a promise. For this reason, we hold that the “proper cause”

provision on which plaintiff relied did not constitute a promise that could form the

basis of a legitimate-expectation claim. [Id. at 166.]

Thus, the Supreme Court held that the employer made no promise of just-cause employment and

that the policy, as written, was not “reasonably capable of instilling a legitimate expectation of

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just-cause employment.” Id. at 166.1 Accord Heurtebise v Reliable Business Computers, Inc,

452 Mich 405; 550 NW2d 243 (1996) (holding that no enforceable rights are created when a

handbook contains a disclaimer stating its provisions are not intended to be construed as a

contract).

Finally, to the extent that plaintiffs interpret Cain as holding that an employee’s

acceptance of an offer made by an employer may not be defeated by reference to a disclaimer in

a general personnel policy or handbook, this argument is unavailing. The “disclaimer”

referenced in Cain was a personnel policy providing that its employment policies, including the

termination pay policy, were subject to change or amendment. Cain, 346 Mich at 570. With

respect to this provision, the Supreme Court held that the employer’s right to change or amend

the policy “could not encompass denial of a contract right gained through acceptance of an

offer.” Id. at 580. That is, the employer could not retroactively modify its policy in order to

deny the plaintiff a contractual right to which the employee was already entitled. Indeed, “a

change in a compensation policy which affects vested rights already accrued may give rise to a

cause of action in contract.” Dumas, 437 Mich at 530, citing In re Certified Question, 432 Mich

438, 457, n 17; 443 NW2d 112 (1989). However, those are not the circumstances presented in

the instant case. Here, the disclaimer was contained within the very pair of policies that set forth

procedures concerning reduction in force and severance pay. And unlike Cain, the disclaimer

presently at issue prevented a contractual offer from ever arising. Thus, plaintiffs never attained

any contract rights.

Because the disclaimer prevented any contractual obligation under either the RIF Policy

or the Severance Pay Policy from arising, we affirm the trial court’s dismissal of plaintiffs’

breach of contract claim.

2. CONTENT OF THE POLICIES

Plaintiffs’ breach of contract claim is premised on two theories: that defendants failed to

pay plaintiffs severance and benefits and that defendants prematurely terminated plaintiffs’

employment and priority consideration for vacant positions before expiration of a six-month

placement period. Even if the RIF Policy and the Severance Pay Policy were contractually

binding on defendants, which we conclude they were not, we further hold that the terms of those

policies do not entitle plaintiffs either to severance pay or to continued employment or priority

consideration during the six-month placement period.

A court’s primary obligation when interpreting a contract is to determine the intent of the

parties. Quality Prods & Concepts Co v Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d

251 (2003). Intent is discerned from the contractual language as a whole according to its plain

and ordinary meaning. Radenbaugh v Farm Bureau Gen Ins Co, 240 Mich App 134, 138; 610

1

Independent from its analysis regarding the contractual disclaimer, the Supreme Court also held

that the employer had changed its policy to at-will employment and that the plaintiff had actual

notice of this change in accordance with In re Certified Question, 432 Mich 438, 455-457; 443

NW2d 112 (1989). Id. at 168-169.

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NW2d 272 (2000). When a contract is clear and unambiguous, the provisions reflect the parties’

intent as a matter of law, and courts are to construe and enforce the language as written. Coates

v Bastian Bros, Inc, 276 Mich App 498, 503; 741 NW2d 539 (2007). A contract is not open to

judicial construction unless an ambiguity exists. Rory v Continental Ins Co, 473 Mich 457, 468;

703 NW2d 23 (2005). A contract is ambiguous only when two provisions “irreconcilably

conflict with each other” or “when [a term] is equally susceptible to more than a single

meaning.” Coates, 276 Mich at 503 (quotation marks and citations omitted). Whether a contract

is ambiguous is a question of law, while determining the meaning of ambiguous contract

language becomes a question of fact. Id. at 504.

a. SEVERANCE PAY

The Severance Pay Policy provides that it was intended to provide severance pay and

benefits to associates “when a position is eliminated and a comparable job is not available

throughout St. John Providence (SJP), Ascension Health or any subsidiary of Ascension Health

(AH), or with a transferred owner/employer.” Both the Severance Pay Policy and the RIF Policy

define a “comparable job” as a “[p]osition within at least 80% of [an] associate’s current pay rate

and for which they have the ability and qualifications to perform.” The RIF Policy further

provides that “[a]ny associate who rejects a Comparable job offer will be considered to have

voluntarily resigned . . . . [and] will not be eligible for severance or further priority

consideration.”

In October 2015, PSJ offered plaintiffs positions as CRNAs at the same base rate of pay

they had previously earned when employed by St. John. However, the offers reduced or

eliminated other terms and benefits of employment, including overtime and other premium rates

of pay, contributions to health savings accounts, short- and long-term disability insurance

coverage, and life insurance coverage. Because plaintiffs rejected these offers, defendants

denied plaintiffs severance pay and benefits, maintaining that under the RIF Policy and

Severance Pay Policy plaintiffs were rendered ineligible for severance. By contrast, plaintiffs

contend that the positions offered were not “comparable jobs” within 80% of their “current pay

rate” because they did not include many of the premiums and benefits plaintiffs had received

when employed by St. John. In response, defendants argue that “current pay rate” refers only to

employees’ base rate of pay and not to those additional fringe benefits and premiums enumerated

by plaintiffs. The issue presented thus centers on the policies’ use of the phrase “current pay

rate.”

Although the phrase “current pay rate” is not defined within either of the policies, the fact

that a term is left undefined does not render a contract ambiguous. Vushaj v Farm Bureau Gen

Ins Co of Mich, 284 Mich App 513, 515; 773 NW2d 758 (2009). Rather, as discussed above,

courts must construe the contract in accordance with the ordinary meaning of the terms. Id. A

common understanding of the unqualified phrase “current pay rate” would encompass an

employee’s then-standing base rate of pay and would not include other premiums or benefits

such as overtime pay or disability insurance coverage. The policies do not define a comparable

job as one within 80% of an associate’s “total compensation package,” “current pay rate,

including premiums and benefits,” or “current pay rate, terms, and conditions.” To apply the

interpretation advocated by plaintiffs would be to add terms not expressed in the policies’ plain

language and would effectively rewrite the terms. See McDonald v Farm Bureau Ins Co, 480

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Mich 191, 199-200; 747 NW2d 811 (2008) (“[I]t has long been the law in this state that courts

are not to rewrite the express terms of contracts.”); Northline Excavating, Inc v Livingston Co,

302 Mich App 621, 628; 839 NW2d 693 (2013) (“We cannot read words into the plain language

of a contract.”).

Plaintiffs argue that the portion of the Severance Pay Policy setting forth the method of

calculating severance uses the phrases “current base hourly rate,” “base rate of pay,” and “base

rate,” thus implying that the term “current pay rate” must be distinguished from the concept of

base rate of pay. But this argument undermines plaintiffs’ position. The Severance Pay Policy’s

use of the three different iterations of “base rate of pay” demonstrates that the terms are used

interchangeably and that there is more than one acceptable way of referring to this non-technical

term. Further, an employee’s entitlement to severance pay is contingent on receiving no

comparable job offers within 80% of the employee’s “current pay rate.” If the employee

receives no such offers, the employee instead receives severance payments in an amount to be

determined by reference to the employee’s “base hourly rate.” It is only logical that these

provisions concerning entitlement to severance and the calculation of that severance be

interpreted consistently in terms of the employee’s pay rate.

On a practical level, applying plaintiffs’ interpretation of “current pay rate” would prove

virtually impossible. Were premiums and fringe benefits to be included in the calculation of an

employee’s “current pay rate,” that figure would fluctuate constantly, depending, for example, on

the number of overtime or premium hours that an employee worked within a given pay period.

As a result of this constant fluctuation, the policies would necessarily have to define what point

in time is “current” for purposes of the calculation, whether it be the last day of a bi-weekly pay

period or a yearly or monthly average. Additionally, under such a measure, it would become

necessary to make separate calculations for each employee, taking into consideration the amount

of overtime each had worked, the amount of reimbursements each had received, and the fringe

benefits in which each had enrolled. It would be further necessary to quantify the value of

certain fringe benefits such as medical expense accounts or life insurance buy-up coverage. Had

St. John intended the calculation of “current pay rate” to include premiums and benefits, it surely

would have made that intention clear and provided a method in the policies for resolving these

resulting complications. Because courts avoid interpreting contracts in a manner that would

impose unreasonable conditions or absurd results, Hastings Mut Ins Co v Safety King, Inc, 286

Mich App 287, 297; 778 NW2d 275 (2009), we decline to adopt the interpretation advanced by

plaintiffs.2

2

Although the dissent notes that summary disposition would be premature given the lack of

discovery into the difficulties of computation, no amount of discovery could rebut the

unreasonable complications that would ensue from applying plaintiffs’ interpretation. See Oliver

v Smith, 269 Mich App 560, 567; 715 NW2d 314 (2006) (summary disposition is appropriate if

there is no reasonable chance that further discovery will reveal factual support for the opposing

party’s position).

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Accordingly, the plain language of the policies clearly and unambiguously provides that a

comparable job is defined by reference to an employee’s base rate of pay and not to any

additional benefits, premiums, terms, or conditions. Because plaintiffs rejected offers of

employment within 80% of their current base rates of pay, defendants thereafter denied them

severance pay and benefits in accordance with the policies. The trial court therefore properly

dismissed plaintiffs’ breach of contract claim premised on defendants’ failure to pay severance.3

b. PLACEMENT PERIOD

Plaintiffs additionally assert they were contractually entitled under the policies to receive

continued employment, compensation, and priority consideration for vacant positions throughout

the six-month placement period. They claim defendants breached this obligation when they

prematurely terminated plaintiffs’ employment before the six-month period had elapsed.

Although the trial court did not reach the merits of this breach of contract theory beyond holding

that no contract existed, the claim may nevertheless be reviewed on appeal. See Loutts v Loutts,

298 Mich App 21, 23-24; 826 NW2d 152 (2012) (holding that a claim raised before the trial

court and pursued on appeal is preserved for appellate review).

With respect to the procedures governing a reduction in force, the RIF Policy provides

that, for a six-month “placement period” beginning on the date an associate is notified of job

elimination, that associate “will be given priority consideration for interviews for vacant

positions for which they are qualified.” The RIF Policy further states,

1. During the placement period, affected associates will be required to

apply for available Comparable Jobs within [St. John] for which they qualify or

they will be ineligible for severance. . . . Employment will end for those associates

unable to be placed in any job within [St. John] on their job elimination date.

2. Affected Associates on [St. John]’s position elimination list will

receive priority consideration to interview for approved vacant, Comparable Jobs

within [St. John] for up to six months (including the notification period). . . .

* * *

5. Any associate who rejects a Comparable job offer will be considered to

have voluntarily resigned effective two weeks from the date of the rejection of the

3

Although we affirm the trial court’s conclusion that plaintiffs are not entitled to severance pay

under the policies, we find no merit in its rationale that plaintiffs presented no evidence that they

signed a Confidential Severance, Waiver and General Release Agreement as required under the

policies. There is no evidence that plaintiffs were ever presented with the release agreement, and

plaintiffs likely would have received the agreement for signature only after they had been

determined eligible for severance pay and benefits. However, “[a] trial court’s ruling may be

upheld on appeal where the right result issued, albeit for the wrong reason.” Gleason v Mich

Dept of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003).

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offer or on the last day of the notification period, whichever is earlier. Such

associates will not be eligible for severance or further priority consideration.

6. Associates who reject an offer that is not Comparable will continue in

the placement period and will remain eligible for priority consideration and/or

severance. [(Emphasis added).]

Though the RIF Policy states that, during the six-month placement period, affected

associates would be granted priority consideration to interview for vacant positions in a

comparable job, nothing within the terms can be construed as an offer of continued employment

during this period. Indeed, the RIF Policy expressly states that employment was at-will, that

associates could be “removed at any time and for any or no reason,” and that the policy was not

to be construed as a “guarantee of continued employment in any position for any duration.” It is

possible that the six-month placement period could extend priority consideration to associates

even after their employment ended. However, the policy clearly states that employment would

end on the job elimination date for associates who had been unable to find alternate placement.

Finally, because plaintiffs rejected comparable job offers, they became ineligible for continued

priority consideration.

Thus, the terms of the RIF Policy do not support plaintiffs’ claims that they were entitled

to continued employment, compensation, or priority consideration, and the trial court’s dismissal

of plaintiffs’ breach of contract claim was appropriate.

C. PROMISSORY ESTOPPEL

Plaintiffs’ promissory estoppel claim rests on the same bases underlying their breach of

contract claim: that defendants failed to pay severance and that defendants prematurely

terminated their employment and priority consideration. To successfully assert a claim for

promissory estoppel, a plaintiff must establish the following elements: “(1) a promise, (2) that

the promisor should reasonably have expected to induce action of a definite and substantial

character on the part of the promisee, and (3) that in fact produced reliance or forbearance of that

nature in circumstances such that the promise must be enforced if injustice is to be avoided.”

Novak v Nationwide Mut Ins Co, 235 Mich App 675, 686-687; 599 NW2d 546 (1999). A

promise giving rise to an actionable claim must be “clear and definite,” while statements that are

“indefinite, equivocal, or not specifically demonstrative of an intention respecting future

conduct, cannot serve as the foundation for an actionable reliance.” State Bank of Standish v

Curry, 442 Mich 76, 85-86; 500 NW2d 104 (1993). To determine whether a promise existed,

courts must objectively evaluate the circumstances of the transaction, including the parties’

words, actions, and relationship. Novak, 235 Mich App at 687. The doctrine of promissory

estoppel must be cautiously applied “only where the facts are unquestionable and the wrong to

be prevented undoubted.” Id.

Plaintiffs’ claim that defendants promised to pay severance and benefits is unavailing for

the same reasons the terms of the policies do not support a breach of contract claim. Under the

policies, payment of severance was contingent on certain circumstances, namely that an

associate’s position was eliminated and a comparable job within 80% of the associate’s current

pay rate was not available. The RIF Policy further stated that an associate would be ineligible

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for severance if he or she rejected a comparable job offer. Consistent with the conclusions

reached above, the definition of a “comparable job” set forth in the policies was premised on an

employee’s base rate of pay and did not include premium pay rates or benefits. Accordingly,

because plaintiffs rejected comparable job offers, the policies set forth no promise to pay

severance or benefits under the circumstances presently at issue. Nor could plaintiffs have

reasonably relied on the policies as extending a promise to pay severance under these

circumstances. See Curry, 442 Mich at 84 (“[T]he reliance interest protected by [1 Restatement

Contracts, 2d, § 90, p 242] is reasonable reliance.”).

Likewise, for the reasons discussed above with respect to breach of contract, the terms of

the RIF Policy do not support plaintiffs’ claim that defendants promised to continue plaintiffs’

employment, compensation, or priority consideration for the entire duration of the six-month

placement period. With respect to continued employment, the RIF Policy contained a disclaimer

expressly stating that the document did not guarantee “continued employment in any position for

any duration.” While affected associates would receive priority consideration for interviews for

six months, the RIF Policy also stated that employment would end for associates who had not yet

obtained alternate placement on the job elimination date. Defendants therefore made no promise

whatsoever of continued employment. With respect to priority consideration, entitlement is

again qualified, as the RIF Policy states that rejection of a comparable job offer renders an

associate ineligible for continued priority consideration. Based on the circumstances currently at

issue, defendants made no promise of continued employment or of continued priority

consideration, nor could plaintiffs have been reasonably justified in so relying.

On these grounds, we affirm the trial court’s dismissal of plaintiffs’ promissory estoppel

claim.

D. CONVERSION CLAIMS

Plaintiffs bring both statutory and common-law conversion claims alleging that

defendants wrongfully converted plaintiffs’ severance proceeds, employment benefits, and

continued compensation for the full duration of the six-month placement period. Conversion is

defined under the common law as “any distinct act of dominion wrongfully exerted over

another’s personal property in denial of or inconsistent with his rights therein.” Aroma Wines &

Equip, Inc v Columbian Distribution Servs, Inc, 497 Mich 337, 346; 871 NW2d 136 (2015)

(emphasis added). In accordance with the above determinations that defendants had no

contractual or equitable obligations either to disburse severance pay and benefits or to continue

plaintiffs’ employment for any duration, we conclude that plaintiffs had no ownership interest in

severance proceeds, benefits, or continued compensation. With no ownership interest in the

property sought, plaintiffs’ conversion claims must fail. See Echelon Homes, LLC v Carter

Lumber Co, 261 Mich App 424, 437; 683 NW2d 171 (2004), rev’d in part on other grounds 472

Mich 192 (2005) (“Because the checks do not belong to Echelon, their conversion does not

amount to the invasion of one of Echelon’s legally protected interests.”). The trial court

therefore properly dismissed plaintiffs’ conversion claims.

E. CLAIMS AGAINST ASCENSION

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Even if plaintiffs’ claims had merit, plaintiffs are nevertheless unable to establish liability

against Ascension, a defect that could not be cured through further discovery. Plaintiffs allege in

their complaint that Ascension is the parent corporation of St. John. Under Michigan law, parent

and subsidiary corporations are presumed to be separate and distinct entities absent some abuse

of the corporate form. Seasword v Hilti, Inc, 449 Mich 542, 547; 537 NW2d 221 (1995).

Consequently, before a corporate parent may be held liable for the actions of its subsidiary, facts

that justify piercing the corporate veil must be shown. Id. at 548. “For the corporate veil to be

pierced, the plaintiff must aver facts that show (1) that the corporate entity is a mere

instrumentality of another entity or individual, (2) that the corporate entity was used to commit

fraud or a wrong, and (3) that, as a result, the plaintiff suffered an unjust injury or loss.” Dutton

Partners, LLC v CMS Energy Corp, 290 Mich App 635, 643; 802 NW2d 717 (2010).

Plaintiffs do not allege in their complaint, let alone plead supporting facts, that St. John is

a “mere instrumentality” of Ascension or that the corporate form was somehow abused to

commit the wrongs alleged. However, in their brief on appeal, plaintiffs contend that Ascension

and St. John are “so intertwined that they appear to be one and the same,” citing a September

2016 press release announcing that St. John planned to adopt the Ascension name. Additionally,

plaintiffs rely on documents relevant to an unemployment claim pending before the MUIA and

identifying as the employer “Ascension Health-IS Inc.” and “Ascension Health Insurance, Inc.”4

However, even if such facts had been pleaded, St. John’s adoption in 2016 of its parent

company’s name for the sake of corporate branding is not suggestive that Ascension exerted any

influence or control over St. John’s RIF Policy or Severance Pay Policy in 2015. Likewise, the

MUIA’s identification of two Ascension-based entities as the employer in documents generated

in 2016 does not demonstrate that Ascension had any role in creating, approving, or

administering these policies. To the contrary, affidavits from both Ascension and St. John

human resources executives stated that Ascension had no role in the process.

Plaintiffs contend they have not had an opportunity to conduct discovery into the

corporate relationship between Ascension and St. John. “ ‘Generally, a motion for summary

disposition is premature if granted before discovery on a disputed issue is complete. However,

summary disposition may nevertheless be appropriate if further discovery does not stand a

reasonable chance of uncovering factual support for the opposing party’s position.’ ” Oliver v

Smith, 269 Mich App 560, 567; 715 NW2d 314 (2006), quoting Peterson Novelties, Inc v City of

Berkley, 259 Mich App 1, 24-25; 672 NW2d 351 (2003). Plaintiffs have not identified any

discovery they seek that would demonstrate that St. John was a mere instrumentality of

Ascension. Because plaintiffs have neither alleged sufficient facts nor shown any likelihood that

4

On appeal, plaintiffs stipulated to withdraw from evidentiary consideration all documents

relating to these unemployment proceedings except for a hearing transcript that is relevant

because it contains the testimony of Michelle Kosal, St. John’s human resources manager,

regarding the meaning of the term “comparable job.” This transcript identifies Ascension Health

Insurance, Inc., as the employer. However, because plaintiffs concede that the document is

relevant only with respect to Ms. Kosal’s testimony, we do not consider the fact that it identifies

an Ascension-based entity as the employer.

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further discovery would yield support for their position, the trial court did not err by dismissing

Ascension from the litigation. Thus, we affirm the trial court’s opinion granting Ascension’s

motion for summary disposition.

F. DEFENDANTS’ CROSS-APPEAL

On cross-appeal, defendants contend that the trial court erred in denying their motion to

strike five documents submitted by plaintiffs concerning unemployment proceedings before the

MUIA. Plaintiffs stipulate to withdraw four of the five documents, leaving at issue only a MUIA

hearing transcript containing the testimony of Ms. Kosal.

This Court generally reviews a trial court’s decision to admit or exclude evidence for an

abuse of discretion. Barnett v Hidalgo, 478 Mich 151, 159; 732 NW2d 472 (2007). “However,

when the trial court’s decision to admit evidence involves a preliminary question of law, the

issue is reviewed de novo, and admitting evidence that is inadmissible as a matter of law

constitutes an abuse of discretion.” Id. Because the admissibility of the hearing transcript hinges

on a question of law, we review this issue de novo.

The Michigan Employment Security Act (MESA), MCL 421.1 et seq., prohibits the use

of information and determinations elicited during the course of an unemployment proceeding

before the MUIA in a subsequent civil proceeding unless the MUIA is a party to or complainant

in the action. MCL 421.11(b)(1); Storey v Meijer, Inc, 431 Mich 368, 376; 429 NW2d 169

(1988). However, MCL 421.11a sets forth an exception to this rule, providing:

An individual who testifies voluntarily before another body concerning

representations the individual made to the unemployment agency pursuant to the

administration of this act waives any privilege under section 11 otherwise

applying to the individual’s representations to the unemployment agency.

[(Emphasis added).]

In the present action, it is beyond dispute that Ms. Kosal voluntarily supplied an affidavit

concerning St. John’s historic interpretation of the terms “comparable job” and “current pay rate”

by reference to the base rate of pay only and not to premiums or benefits. This affidavit was

submitted before the trial court in support of defendants’ motions for summary disposition. The

affidavit thus constitutes voluntary testimony submitted before a judicial body. 5

5

In challenging whether a sworn affidavit submitted before a trial court constitutes testimony

before a “body,” defendants rely on an unpublished decision of a federal district court

concluding that a deposition did not amount to testimony before a “body.” See Ablahad v Cellco

Partnership, unpublished opinion of the United States District Court for the Eastern District of

Michigan, issued December 13, 2016 (Case No. 15-14009), p 7-8. “Although lower federal

court decisions may be persuasive, they are not binding on state courts,” Abela v Gen Motors

Corp, 469 Mich 603, 607; 677 NW2d 325 (2004), and, as such, we decline to follow this

authority.

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The parties dispute whether the affidavit concerns representations made by Ms. Kosal to

the MUIA in the hearing transcript. The purpose of the hearing before the MUIA was to

determine whether plaintiff Kimberly Glanda fraudulently concealed from the agency that she

had refused PSJ’s offer of suitable work, thereby disqualifying her from receiving

unemployment benefits. Part of this inquiry included whether Ms. Glanda had good cause for

her refusal of suitable work. The parties disputed during the hearing whether PSJ’s offer

constituted “suitable work” or a “comparable job,” given that the offer reduced or excluded

many premiums and benefits.

Ms. Kosal stated during the hearing that Ms. Glanda was offered the same base rate of

pay and that a comparable job was defined under the policies by reference to this value and did

not take into account premiums and benefits. Ms. Kosal’s affidavit submitted before the trial

court thus concerned the same representations she made before the MUIA. Consequently, the

privilege protecting information presented during a MUIA proceeding was waived under MCL

421.11a, and the trial court properly admitted the MUIA hearing transcript.

Affirmed.

/s/ Michael F. Gadola

/s/ Deborah A. Servitto

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