I. Basic Facts
Plaintiff is a male of Hispanic or Mexican-American ancestry. At the time of his termination from employment on May 19, 2003, plaintiff worked as a salaried “7th Level Technician” in GM's small car group at the Milford Proving Grounds facility. He had worked continuously for GM for approximately 20 years, beginning in September 1983. Plaintiff alleged that during his 20 years of employment, his employment record was always satisfactory. GM's small car group supervisor confirmed that plaintiff was a good, honest, and loyal employee.
Plaintiff routinely accessed GM's e-mail system and internal computer network by way of an assigned computer terminal in the small car group work area. Like all employees, plaintiff had a personal computer password, which he used to access the terminal. The computer terminal was password-protected, and several different employees within the small car group used the same terminal on any given day. Included among the employees who used the computer terminal in question was plaintiff's coworker Ken Mueller. Mueller routinely alternated his computer use between at least three different terminals in the small car group work area.
Plaintiff typically logged onto the computer terminal with his personal password at the beginning of each day's shift. Then, once plaintiff finished his computer tasks, he generally remained logged onto the terminal instead of logging off, in effect leaving the computer terminal “open for others ... to use.” Ken Mueller frequently used the computer while plaintiff was still logged onto it. Often, plaintiff was not present in the immediate area while Mueller was using the computer under plaintiff's password. GM supervisors apparently condoned Mueller's use of other employees' passwords. Mueller, who was referred to as “the computer ‘go-to’ guy for the workers in the small car group,” was in charge of assisting other workers with computer troubleshooting, and therefore had access to the other employees' passwords.
Plaintiff remembered having objected to at least two inappropriate e-mails sent to him by coworkers during the course of his employment at GM. Plaintiff testified that on both occasions he immediately replied to the specific coworker in question and asked him to stop sending the inappropriate e-mail. Plaintiff testified that he did not recall the specific content of any inappropriate e-mails that he had received from coworkers; however, he remembered that some of them had been objectionable.
*2 In early 2003, a female GM employee informed her supervisor that she had received an inappropriate e-mail, sent to her internal GM e-mail address, from another GM employee named Frank Ottavian. GM retained an outside investigation firm to look into possible inappropriate uses of the internal Lotus Notes e-mail system. An employee of the outside investigation firm “restore[d]” Ottavian's GM e-mail account, and verified that Ottavian had in fact sent the inappropriate e-mail. Other sexually inappropriate e-mails were found in Ottavian e-mail account as well. It was eventually discovered that several different GM employees had been involved in either sending or receiving sexually inappropriate e-mails within GM's internal Lotus Notes network. Included among the GM e-mail addresses to which inappropriate e-mails had been sent were the addresses of plaintiff and Mueller.
Sometime in April or May 2003, the outside investigation firm “obtained a restore of [plaintiff's] mailbox back at least until November 19, 2002,” and located certain sexually inappropriate e-mails in plaintiff's mailbox. The restore of plaintiff's mailbox revealed at least one inappropriate e-mail message that had been forwarded to <firstname.lastname@example.org>, Mueller's personal e-mail address.
GM approached plaintiff and questioned him regarding his use of GM computers and the internal Lotus Notes e-mail network. On about May 13, 2003, GM suspended plaintiff so that it could formally investigate his possible inappropriate use of company computers. Upon concluding that plaintiff had violated the company's acceptable computer use policy, GM fired plaintiff on May 19, 2003.
Plaintiff has at all times maintained that he did not send or receive the inappropriate e-mails at issue. Instead, plaintiff claims that Mueller surreptitiously accessed his GM e-mail account, opened and viewed the inappropriate e-mails, and then forwarded them to his own personal e-mail address. Plaintiff asserts that as soon as he realized that someone had sent e-mail from his account, he immediately confronted Mueller and other coworkers to determine the identity of the person who had accessed his account and sent the e-mails in question. Plaintiff's coworkers, including Mueller, initially denied any involvement in the matter.
However, according to plaintiff, sometime in May 2003, Mueller admitted to plaintiff that he had used plaintiff's password and e-mail address to send the inappropriate e-mails. Also according to plaintiff, Mueller admitted to coworkers Kevin Morrison and Raleigh Doust that he had sent the e-mails from plaintiff's account. Doust executed an affidavit in which he averred that he spoke with Mueller during the week of May 19, 2003, and that Mueller admitted that he had forwarded the e-mails to his own personal e-mail address using plaintiff's password and GM e-mail account.
When asked whether he had sent the e-mails that formed the basis for plaintiff's dismissal, even Mueller did not completely deny his involvement. Mueller testified at his deposition that he was “not sure” whether he or plaintiff had forwarded the inappropriate e-mails to his personal e-mail address, and that he simply could not recall whether he had confessed his involvement to Doust.
*3 In May 2003, plaintiff met with GM management and human resources personnel to protest his termination, to assert his innocence, and to inform them of his belief that Mueller was responsible for sending the inappropriate e-mails in question. Mueller told GM human resources personnel that “quite a few guys share personal e-mails back and forth,” but maintained that he had never used plaintiff's password or e-mail account to do so. GM determined that Mueller had been somehow involved in the e-mail scandal. However, instead of firing Mueller, GM reduced the amount of a proposed pay raise that he was scheduled to receive.
II. Procedural History
Plaintiff filed this action in December 2003, asserting claims of wrongful discharge (count I), breach of an implied covenant of good faith (count II), slander (count III), “malicious breaches of duty” (count IV), tortuous interference with existing and prospective contractual relations (count V), “mental distress” (count VI), and age and national origin discrimination in violation of the Michigan Civil Rights Act (count VII). On August 4, 2004, the trial court ordered GM to comply with plaintiff's discovery requests by answering certain interrogatories and by “produc[ing] copies of existing e-mails sent or received by Plaintiff Martinez and Ken Mueller from January 1, 2002 to January 18, 2003.” The trial court further ordered that “if such e-mails do not exist, Defendant GM shall produce an affidavit from an ... employee with appropriate knowledge, indicating that such e-mails do not exist.”
Plaintiff then filed a motion seeking to compel GM to allow electronic discovery of its e-mail network and computer hardware by plaintiff's own computer expert. This motion was unsuccessful. However, plaintiff filed a second motion to compel electronic discovery, which was granted by the trial court on January 6, 2005. The trial court order authorized plaintiff's expert, Larry Dalman, to search GM's internal Lotus Notes e-mail server and three designated computer hard drives for the period May 19-26, 2003, using both plaintiff's and Mueller's passwords. The order specifically authorized Dalman to search for (1) e-mails that were received by plaintiff or Mueller at their GM e-mail addresses, and (2) e-mails that were sent from plaintiff's or Mueller's GM e-mail accounts, with particular emphasis on any such e-mails that were forwarded to Mueller's personal e-mail address.
In June 2005, plaintiff moved for sanctions against GM on the ground that it had caused the spoilation of digital evidence contained on “hard drive # 1” before Dalman was able to conduct his search. According to plaintiff, GM knew that the contents of “hard drive # 1” were relevant to the case, but nonetheless allowed the hard drive's contents to be erased. GM responded that it had not become aware of the need to preserve the contents of “hard drive # 1” until the trial court issued its order of January 6, 2005. GM pointed out that the initial discovery order of August 2004 merely required GM to produce “copies of existing e-mails sent or received by Plaintiff ... and Ken Mueller,” and did not mention hard drives or any other type of computer evidence.
*4 In July 2005, GM moved for summary disposition pursuant to MCR 2.116(C)(10). GM argued that it was justified in firing plaintiff because it had honestly believed that plaintiff was involved in sending and receiving inappropriate e-mails over the internal Lotus Notes e-mail server. Plaintiff responded that Ken Mueller was involved in the same or similar alleged conduct, but that Mueller, who was a younger Caucasian employee, was not fired. GM argued that Mueller's alleged confessions to plaintiff and Doust were inadmissible hearsay, and that there was thus no evidence to suggest that Mueller had engaged in the same or similar alleged misconduct.
The trial court granted summary disposition in favor of defendant with respect to plaintiff's claim of wrongful discharge (count I), ruling that plaintiff was an at-will employee. The court also granted summary disposition for defendant with respect to plaintiff's counts II, III, IV, V, and VI. Finally, with respect to count VII, alleging intentional discrimination, the trial court granted summary disposition for defendant on the age discrimination claim, but denied summary disposition for defendant with respect to the national origin discrimination claim. The court ruled that plaintiff had not shown that he was replaced by a younger worker, but that plaintiff had created a genuine question of fact concerning whether he was treated differently than a similarly situated Caucasian employee. The trial court also denied plaintiff's motion for sanctions, finding that there was no showing that GM had intentionally destroyed relevant computer evidence.
IV. Wrongful Discharge
*5 Plaintiff first argues that because he had an implied contract or legitimate expectation of just-cause employment, the trial court erred in granting summary disposition in favor of GM with respect to his wrongful termination claim.
“Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party.” Lytle v. Malady (On Rehearing), 458 Mich. 153, 163; 579 NW2d 906 (1998). However, the presumption of employment at will may be rebutted by (1) proof of a contractual provision for a definite term of employment or a provision forbidding discharge absent just cause, (2) a clear and unequivocal express agreement, either written or oral, regarding job security, or (3) an implied contractual provision or “legitimate expectation” of job security resulting from the employer's policies and procedures. Id. at 164. In resolving the issue whether an employee has demonstrated a legitimate expectation of job security, an inquiry must be made into what, if anything, the employer promised and whether the promise is reasonably capable of instilling a legitimate expectation of just-cause employment in the employee. Id. at 164-165.
For example, in Toussaint v. Blue Cross & Blue Shield of Michigan, 408 Mich. 579, 598-599; 292 NW2d 880 (1980), our Supreme Court held that an employer's oral or written representation not to discharge an employee except for just cause may be legally enforceable, despite the general rule that employment contracts for indefinite terms are terminable at will. However, “[t]o establish a Toussaint
claim, the employee must demonstrate both a subjective and objective expectancy that his employment is terminable for just cause only.” Singal v. Gen Motors Corp, 179 Mich.App 497, 504; 447 NW2d 152 (1989).
In the present case, the GM employee handbook stated that regular employees were employed on a month-to-month basis and that, consistent with an at-will employment relationship, either the employee or the company could take the initiative to end the relationship. These written statements in the employee handbook created an at-will employment relationship, Schultes v. Naylor, 195 Mich.App 640, 643-644; 491 NW2d 240 (1992); Singal, supra
at 504-505, and plaintiff has not produced any evidence corroborating his claim that GM made oral assurances or manifestations concerning a just-cause employment relationship, Schultes, supra
at 644. Although plaintiff insists in his brief on appeal that certain GM officials at the Milford Proving Grounds facility-including director of operations Purvis Hunt-made such assurances concerning just-cause employment, plaintiff does not even identify the substance of these alleged statements.
Plaintiff has simply failed to submit any evidence of a written or oral agreement for just-cause employment, of a legitimate expectation of job security, or of a contract for a definite term of employment. Lytle, supra
at 164-165. Because plaintiff was an at-will employee and failed to establish a genuine issue of material fact to the contrary, summary disposition of his wrongful termination claim was appropriate.
V. Wrongful Use of Plaintiff's Password and Identification
*6 Plaintiff also argues that GM wrongfully acquiesced in or consented to Mueller's unpermitted use of his computer password and e-mail account. Plaintiff has included this matter as a separate and distinct issue in his statement of the questions involved. See MCR 7.212(C)(5). However, plaintiff has not addressed or even mentioned this matter as a separate and distinct issue in the argument section of his brief on appeal. “It is not enough for an appellant in his brief simply to announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments, and then search for authority either to sustain or reject his position.” Mitcham v. Detroit, 355 Mich. 182, 203; 94 NW2d 388 (1959). A cursory statement with little or no citation of supporting authority is insufficient to bring an issue before this Court. Wilson v. Taylor, 457 Mich. 232, 243;577 NW2d 100 (1998). “If a party fails to adequately brief a position, or support a claim with authority, it is abandoned.” Moses, Inc v. SEMCOG, 270 Mich.App 401, 417; 716 NW2d 278 (2006), citing Yee v. Shiawassee Co Bd of Comm'rs, 251 Mich.App 379, 406; 651 NW2d 756 (2002). To the extent that plaintiff intended to include this matter as a separate and distinct issue in his brief on appeal, it has been abandoned.
VII. Sanctions for Spoilation of Evidence
*7 Plaintiff further argues that the trial court erred in failing to sanction GM for the destruction or spoilation of relevant electronic evidence contained on “hard drive # 1.”
“A trial court has the authority, derived from its inherent powers, to sanction a party for failing to preserve evidence that it knows or should know is relevant before litigation is commenced.” Bloemendaal, supra
at 211. As noted above, an exercise of this power may be disturbed only on a finding that there has been an abuse of discretion. Brenner, supra
at 160-161. If material evidence has been spoiled or destroyed by one party, the trial court must carefully fashion a sanction that denies that party the fruits of its misconduct, but that does not interfere with the party's right to produce other relevant evidence. Bloemendaal, supra
at 212. Possible sanctions include “the exclusion of evidence that unfairly prejudices the other party or an instruction that the jury may draw an inference adverse to the culpable party from the absence of the evidence.” Id.
“[S]poliation may occur by the failure to preserve crucial evidence, even though the evidence was not technically lost or destroyed.” Id.
“ ‘Even when an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.’ “ Id.,
quoting Brenner, supra
As an initial matter, it is uncontested that the contents of “hard drive # 1,” one of the three hard drives designated by plaintiff pursuant to the trial court's January 2005 digital discovery order, were erased before plaintiff's expert had an opportunity to search them. GM's computers at the Milford Proving Grounds facility were leased from a third party, and when the lease of those computers expired in late 2004, the computers' hard drives were erased and reformatted by the third-party leasing company in the normal course of its business. GM insists that it had no reason to believe prior to the trial court's January 2005 digital discovery order that plaintiff would seek discovery of any computer hard drive evidence in this case. Moreover, GM argues that the contents of “hard drive # 1” were actually irrelevant, because internal GM e-mails are retained only on the Lotus Notes e-mail server, and are not stored or retained on any individual computer hard drive.
We note that GM cites no admissible evidence in support of its contention that internal e-mails are not stored on computer hard drives. Further, plaintiff's computer expert Larry Dalman testified that he believed that any e-mail actually opened and viewed on a GM computer would have been stored as a temporary internet file on that computer's hard drive. However, notwithstanding the parties' seemingly genuine disagreement concerning whether internal e-mails are retained on computer hard drives, it is irrelevant whether the inappropriate e-mails at issue here were ever stored on “hard drive # 1.”
*8 Even assuming arguendo that all internal e-mails sent from a particular computer are stored on that computer's hard drive, the most that plaintiff could have discovered by examining the contents of “hard drive # 1” is whether the inappropriate e-mails at issue in this case were ever sent from plaintiff's e-mail account on a specific computer terminal. However, even plaintiff admits that the e-mails were sent and received using plaintiff's account and password, and this fact is confirmed by the e-mails' presence on GM's Lotus Notes e-mail server. Indeed, the critical question is not whether the e-mails were ever sent and received in the first instance, but is rather whether the e-mails were sent and received by plaintiff or by someone else who was using plaintiff's password and account. It is undisputed that even if a search of “hard drive # 1” in its pre-reformatted condition could have shown the presence of the inappropriate e-mails, such a search could not have shown whether those e-mails were actually sent by plaintiff, by Mueller, or by a third party using plaintiff's account and password. Similarly, it is undisputed that even if a search of “hard drive # 1” in its pre-reformatted condition could have shown the absence of the inappropriate e-mails, such a search could not have conclusively established that plaintiff was not involved.
Discovery of the digital contents of “hard drive # 1,” as those contents existed before the drive was erased, could not in any way have increased or decreased the probability that plaintiff was involved in sending the inappropriate e-mails at issue in this case. In short, the contents of “hard drive # 1” were irrelevant. MRE 401. Although a party is prejudiced by the destruction or spoliation of material and relevant evidence, Brenner, supra
at 160-161, it is axiomatic that a party cannot be prejudiced by the destruction or spoliation of irrelevant evidence. Moreover, to the extent that the contents of “hard drive # 1” could have shown the existence of any e-mails sent from plaintiff's GM e-mail account, such contents would have been superfluous because the e-mails at issue had already been discovered through a search of the GM Lotus Notes server. The trial court did not abuse its discretion by declining to sanction GM for the destruction of this superfluous and irrelevant computer evidence. Bloemendaal, supra