Lead Opinion
The issue before us is whether the Whistleblowers’ Protection Act (wpa)
I
Plaintiff, Michael L. Dudewicz, worked as a parts manager for an automobile dealership, Norris Schmid, Inc., defendant. On the morning of November 4, 1987, Dudewicz attempted to obtain warranty service for a customer who, as a wholesale buyer, did. a lot of business with Norris
After Norris. left the service area, Dudewicz alleged that the service manager reached over the service counter and grabbed Dudewicz by the collar and tried to pull him across the. counter. Dudewicz alleged that Boehm told him never to bring the owner into the service area again. During the course of this fracas, Dudewicz alleged that the service manager tore buttons off his shirt, broke a gold chain from around his neck, and left fingerprints on his neck. That same day, Dudewicz told Norris Schmid’s new car sales manager about the incident and also filed criminal charges with the Midland County Prosecutor, alleging assault and battery.
Dudewicz testified that upon entering work the morning of December 1, 1987, he was called to Norris’ office and told to drop the criminal charges against the service manager or be fired. He was also told to leave the dealership. Dudewicz left the premises because he believed he had been fired; he also believed he could regain his job if he agreed to drop the criminal charges. Dudewicz then contacted an attorney who counseled him to return to work. When Dudewicz did return to the dealership on December 3, 1987, Norris told him the dealership considered him to have quit and that he had to leave the premises. Dudewicz argued that he had not quit, but had, in fact, been fired. Further, Dudewicz refused to leave unless provided with a letter of termination. Norris refused to comply with this request and called the police to escort Dudewicz from the premises.
Dudewicz appealed as of right in the Court of Appeals, which reversed.
The Court also noted that, as Norris Schmid argued, Dudewicz might have had to choose the wpa as his exclusive remedy over his public policy claim. Because, however, the trial court "expressly stated that it had not granted the motion for summary disposition on the basis that the [wpa] provides the exclusive remedy,” the Court ruled that "consideration of the applicability of the public policy exception to the facts of this case [was] still proper . . . .”
Next the Court considered Dudewicz’ claim that his discharge was in violation of the wpa because he was fired for filing a criminal complaint, alleging that he had been assaulted and battered by a fellow employee. In ruling that the wpa prohibited such conduct, the Court expressly rejected an earlier Court of Appeals holding, Dickson v Oakland Univ,
In deciding whether the trial court erred in directing a verdict for the defendant, we must first decide whether the wpa was intended to protect employees who are fired for reporting violations of the law by fellow employees. Norris Schmid contends that the wpa protects only those employees who are fired for reporting their employers’ violations of law. There is, however, no such limitation in either the express language of the wpa or the analysis of the House Bill that spawned the wpa.
Section 2 of the wpa provides in full:
An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [MCL 15.362; MSA 17.428(2).[3 ]
A plain reading of this provision reveals that protection is not limited to employee reports of violations by employers. On its face, the provision only seems to apply to the discharge of an em
Moreover, the legislative analysis of the wpa supports the conclusion that its provisions protect employees who report violations of law by either their employers or fellow employees. The analysis recognizes the problem the wpa was designed to alleviate as the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). The analysis goes on to say that "[t]he people best placed to observe and report violations are the employees of government and business, but employees are naturally reluctant to inform on an employer or a colleague.” Id. (emphasis added). It appears that, at the time the bill was considered, the Legislature intended the protection to apply to employee reports of any and all violations of law by either employers or fellow employees.
In any event, we find that the activity at issue here, reporting a fellow employee’s violation of the state’s Criminal Code because of a dispute over the handling of company business, is not so different from traditional notions of whistleblowing. Typically, the activity involves the violation of laws more closely connected with the employment setting, such as Health Code and safety violations, Tyrna v Adamo, Inc,
In deciding that the wpa did not apply to the facts of this case, the trial judge relied upon a relatively recent Court of Appeals decision, Dickson v Oakland Univ, supra. The trial judge believed himself to be bound by the Dickson Court’s ruling that the wpa applied only to employees fired for reporting violations of law by their employers. We agree with the Court of Appeals, that there is no such limitation on the applicability of the wpa.
The plaintiff in Dickson worked as a police officer for the defendant’s department of public safety.
In support for limiting the wpa to reports of violations of law by employers, the Dickson Court quoted, inter alia, the same portion of the legislative analysis as quoted above. See
Admittedly, a strictly literal interpretation of the statute without an analysis of legislative intent arguably could lead to an interpretation that would bar discharge of an employee for reporting a crime by anyone under any circumstances. See Tyrna,
Accordingly, we find that the trial court erred in granting a directed verdict on this issue.
III
The Court of Appeals reversed the trial court’s grant of summary disposition on the public policy claim because the trial court did not dismiss the claim on the basis of the fact that the wpa provided an exclusive remedy. While acknowledging the fact that the wpa was probably exclusive, the Court found that, because the trial court did not discuss this issue, it could not do so either. The Court erred in its rationale, however. Because the parties preserved the issue of public policy preemption and because the trial court failed to deal with the issue,
As a general rule, the remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative. Pompey v General Motors Corp,
In Suchodolski v Michigan Consolidated Gas Co, supra, this Court recognized that there was an exception to the general rule that either party to an employment at will contract could terminate the agreement at any time for any or no reason. The exception is based on the principle that "some grounds for discharging an employee are so contrary to public policy as to be actionable.” Id. at 695. We also found that these restrictions on an employer’s ability to terminate an employment at will agreement are most often found in explicit legislation. Id. The wpa is such legislation. Id.
The existence of the specific prohibition against retaliatory discharge in the wpa is determinative of the viability of a public policy claim. In those cases in which Michigan courts have sustained a public policy claim, the statutes involved did not specifically proscribe retaliatory discharge. Where the statutes involved did proscribe such discharges, however, Michigan courts have consistently denied a public policy claim. Compare Trombetta v Detroit, T & I R Co,
IV. CONCLUSION
For the reasons set forth above, the trial court erred in granting Norris Schmid’s motion for a directed verdict. The wpa applies to an employee who reports a violation of a law arising out of a dispute over the handling of company business and occurring during business hours, regardless of whether the criminal actor is the employer or a fellow employee. Accordingly, the trial court’s judgment on the directed verdict was erroneous. The trial court properly granted summary disposition with regard to the public policy claim, however, because the wpa preempts that claim.
The judgment of the Court of Appeals is affirmed with respect to the wpa claim, and reversed with respect to the public policy claim. The case is remanded for trial of the wpa claim.
Notes
MCL 15.361 et seq.; MSA 17.428(1) et seq.
A conversation between the trial court and counsel for Dudewicz indicated that the attorney believed the trial judge dismissed the public policy count on the ground that the wpa provided an exclusive remedy. The attorney asked the judge to reconsider his decision, but the judge refused to do so, at least until after hearing Dudewicz’ proofs. Once the proofs had been offered and the trial judge had granted a directed verdict for Norris Schmid, the judge informed the parties that he had dismissed the public policy claim, not because the wpa provided an exclusive remedy but, because the claim was not applicable to the case.
As stated, the report, or the attempted report, must be made to a "[p]ublic body.” This concept encompasses many entities, including "[a] law enforcement agency or any member or employee of a law enforcement agency.” MCL 15.361(d)(v); MSA 17.428(l)(d)(v). There is no. dispute that the Midland County Prosecutor is a "public body” for purposes of the wpa.
In any event, Dickson is clearly distinguishable on its facts. Forgetting for a moment who broke the law, the plaintiff in Dickson reported the violation only to his employer, not to a public body within the meaning of the wpa. On these facts, the panel correctly found that the wpa was inapplicable. While its ruling was correct, the panel made an unfortunate comment in dicta stating that the purpose of the wpa was to protect only those employees who reported violations of law by their employers. It is this comment that is erroneous.
As noted in n 2, the trial court dismissed the public policy claim as inapplicable and, therefore, did not discuss the exclusivity of the WPA.
Also noted were the Civil Rights Act, MCL 37.2701; MSA 3.548(701), the Handieappers’ Civil Rights Act, MCL 37.1602; MSA 3.550(602), and the Occupational Safety and Health Act, MCL 408.1065; MSA 17.50(65).
Dissenting Opinion
I respectfully dissent from my colleagues’ conclusion that the Whistleblowers’ Protection Act (wpa)
I
A prima facie case of retaliation under the Whistleblowers’ Protection Act requires a showing that the plaintiff was engaged in protected activity as defined by the act. The act provides in relevant part: "An employer shall not discharge ... an employee . . . because the employee . . . reports ... a violation ... of a law or regulation or rule ... to a public body . . . .”
The act expressly protects employees who report violations of law, but it is less than clear regarding both the identity of the lawbreaker and the circumstances under which the violation of law must occur. The statute does not state who the employee must suspect as having violated the law, nor does it expressly describe the setting in which the violation must have occurred or the relationship the illegal conduct must bear to the conduct of business. In short, the statute is ambiguous.
It is axiomatic that if the language of a statute is unambiguous, this Court must read and apply it as written. Where the statute is ambiguous, "the object of the statute [and] the harm which it is designed to remedy” are relevant indications of intent. In re Forfeiture of $5,264,
Applying these principles, I agree with the majority’s conclusion that restricting the protection afforded by the wpa only to reports of employer violations of law would be contrary not only to the intent of the Legislature, but also to the language of the statute. The plain language of the act provides that an "Employer includes an agent of an employer . . . .”
B
I disagree with the majority’s conclusion that the wpa applies to protect the activity in this case. That conclusion imparts an expansive interpretation to the statute that is not supported by the statutory purpose or the context in which the statute was enacted. As amicus curiae, Aclu Fund of Michigan, points out, Michigan was the first state to grant statutory protection to employees who reported an employer’s illegal activity. The act was, in part, the Legislature’s response to an incident of accidental chemical contamination of
I agree with amicus curiae and the majority that the act is designed both to encourage employees to assist in law enforcement and to protect those employees who engage in whistleblowing activities. However, this observation fails to take account of a significant focus of the statute noted in the bill analyses. A whistleblowing employee alerts the public to the employer’s, or a co-worker’s, "corruption or criminally irresponsible behavior in the conduct of government or large businesses . . . .”
In the instant case, the criminal act committed by the plaintiff’s co-worker did not involve corrupt or illegal business practices of the employer or coworker, or result from the conduct of the employer’s business, and is therefore not within the umbrella of activity protected under the wpa. Because the plaintiff was not engaged in activity protected under the wpa, I would reverse the decision of the
II
I would further hold that plaintiff’s activity is protected as a matter of the fundamental public policy of this state as expressed in its Penal Code. Therefore, I would affirm the decision of the Court of Appeals on this question and remand this case for trial.
Where an employment relationship is at will, either party to the relationship "may terminate it at any time for any, or no, reason.” Suchodolski v Michigan Consolidated Gas Co,
While "the Court has acted with circumspection in carrying out public policy exceptions to the 'at will’ doctrine[,]” Clifford v Cactus Drilling Corp, 419 Mich 356, 367;
The plaintiff in an action for wrongful discharge in violation of public policy must show that the "plaintiff engaged in protected activity. The activi
Courts addressing similar questions have inferred claims for wrongful discharge from " 'sufficient legislative expression’ of a policy that prohibits an employer from conditioning employment upon the employee’s agreement to conceal or stifle an investigation into a crime.” Pratt v Brown Machine Co, 855 F2d 1225, 1237 (CA 6, 1988). Thus, where an employee informed law enforcement officials that one of his co-workers may have violated the criminal code, agreed to assist in the investigation and trial, and was later fired for his role in the investigation, the employee had made out a claim of retaliatory discharge in violation of public policy. In Palmateer v Int'l Harvester Co, 85 Ill 2d 124, 132;
There is no public policy more basic, nothing more implicit in the concept of ordered liberty . . . than the enforcement of a State’s criminal code. . . . There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens. . . .
No specific constitutional or statutory provision •requires a citizen to take an active part in the ferreting out and prosecution of crime, but public policy nevertheless favors citizen crime-fighters. "Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been com*86 mitted should not be deterred from reporting them by . . . fear . . . [Quoting Joiner v Benton Community Bank, 82 Ill 2d 40, 44;411 NE2d 229 (1980).]
The public policy favoring encouraging citizens’ cooperation in the prosecution of crime obtains even more forcefully when a citizen is deterred from cooperation with the police solely because the consequence will be loss of gainful employment.
The Legislature has declared that assault and battery is a crime.
I would hold that the plaintiff’s assertion that he was the victim of an assault by a coemployee and that he was terminated for the reason that he refused to forswear redress in the criminal justice system stated a claim for wrongful discharge in violation of Michigan’s public policy.
In sum, the plaintiff did not engage in activity-protected under the wpa when he filed a criminal complaint against a co-worker. The wpa was enacted to protect employees who report corrupt or illegal business practices or violations of law by an employer or co-worker that result from the conduct of the employer’s business. The employer’s demand that the employee withdraw the criminal complaint against his co-worker or be fired was an alleged violation of a clearly established public policy of this state.
Thus, I would affirm the decision of the Court of Appeals regarding the public policy claim, and reverse the decision of the Court of Appeals with respect to the Whistleblowers’ Protection Act claim.
MCL 15.361 et seq.; MSA 17.428(1) et seq.
MCL 15.362; MSA 17.428(2).
MCL 15.361(b); MSA 17.428(l)(b).
House Legislative Analysis, HB 5088, 5089, First Analysis, April 17, 1980; Second Analysis, February 5, 1981.
Barcia, Update on Michigan’s Whistleblowers’ Protection Act, 1988 Det Col LR 1, 1-2. Senator James A. Barcia introduced and sponsored the bill that became the Whistleblowers’ Protection Act. Id. at 2.
Id. at 2.
House Legislative Analyses, n 4 supra. (Emphasis added.)
The federal courts have also been reluctant to infer a cause of action where Congress has not expressly created one. See 19 Wright, Miller & Cooper, Federal Practice & Procedure, § 4514, p 241.
MCL 750.81; MSA 28.276.
MCL 18.351 et seq.; MSA 3.372(1) et seq.
I, of course, do not suggest that an employer has no remedy against a disruptive employee, or that an employer does not have a good-faith defense to a claim filed in this recognized cause of action.
Given the conclusions that the plaintiff has stated a claim for wrongful discharge under the public policy exception to the employment at will doctrine, and that the defendant’s motion for directed verdict was correctly granted on the basis of the Whistleblowers’ Protection Act because plaintiff was not engaged in protected activity under the wpa, it is unnecessary to decide whether the wpa provides plaintiff’s exclusive remedy.