Phillips v. Butterball Farms Co.

COMPANY, PHILLIPS v BUTTERBALL FARMS INC REMAND) (AFTER SECOND 14). (Calendar 2, Argued No. Docket No. 97976. November 21, 1995. Decided March brought an action in the Kent Circuit Court Teresa Inc., Company, claiming against Butterball Farms that she exercising rights discharged the work- in retaliation for under by requesting compensation for act that medical bills er’s court, job paid. injuries A. The Robert suffered on defendant, Benson, J., granted summary disposition for the ruling punitive damages or emo- that for mental Appeals, The Court of tional distress could not be recovered. Maher, P.J., JJ., Reilly, in an and affirmed and Sullivan 118024). (Docket opinion per unpublished The curiam No. Supreme the case for reconsidera- Court vacated and remanded (1991). remand, Appeals, 439 Mich 895 the Court of tion. On Reilly JJ., Sullivan, P.J., Jansen, and affirmed in an and curiam, opinion per finding unpublished cause of 147501). (Docket Supreme No. action sounded in contract again and remanded the case for reconsideration vacated Health, light Dep’t of Dunbar v of Mental (1993). remand, the Court of 442 Mich 911 second On Reilly JJ., P.J., Jansen, Appeals, re- McDonald, and and tort, versed, permit- holding action sounded in that the cause of distress, ting damages emotional but that because for mental or will, only plaintiff limited or nominal was an 165049). (Docket plaintiff No. could be recovered appeals. Levin, Cavanagh, opinion by joined Justices In an Justice Supreme Boyle, Mallett, and Court held: will, recovery Although Phillips is not was an damages. that she was limited to nominal If she can establish compensa- discharged exercising rights the worker’s for under References 2d, Wrongful Discharge 26. Am Jur Recovery §§ filing employment in retaliation for from compensation 32 ALR4th 1221. workers’ claim. act, wages, tion she recover for lost back pay, damages. front and mental or emotional distress seeking damages A 1. cause of action retaliatory discharge claim is independent of the sounds not and in contract. will,” relationship the While contractual is "at it is the not protection. employee’s right right of an source to stems not promise implied by employer, from an the but from the work- compensation er’s statute. tort, 2. Because action in sounds the available Thus, principles. plaintiff not are limited contract the not is required plead separate a to for of claim intentional infliction damages, emotional distress to recover nor must she the meet requisite establishing burdens to that cause of action. She separate independent recovery and stated basis for of mental damages. wages and emotional distress She recover lost expectation because she had a reasonable that she would not be filing claim, compensation despite terminated for employment relationship. right nature the of the Because the recovery public policy exceptions employ- to under the to the independently ment will doctrine arises of the contract, compensated wages. she should be for lost Nominal compensate employment, would not her for the of loss they provide employers would nor to sufficient deterrence who would violate the statute. Reversed and remanded. joined by dissenting, Riley, Brickley, Justice Chief Justice claiming that stated a common-law action retaliation for assert- ing contract, compensation rights worker’s sounds in and dam- ages Appropriate are limited traditional contract remedies. remedies would include reinstatement and the back judgment, of date to the date of not mental exemplary damages. type wrongful discharge distress or This gives judicially attempts rise to a created cause of action that protect expressed policy implied every state is i.e., employment, right contract to assert worker’s com- pensation rights being discharged without or discriminated against. liability with associated worker’s negligence employer, not does derive from the fault injury arising employment.

but from out of and the course of part Justice Weaver took no decision this case. (1993) 506 NW2d 606 reversed. Compensation Employment — Retaliatory — Worker’s at Will Discharge — Torts. seeking damages A cause action from an for retalia- v Butterball op Opinion the Court claim is tory discharge worker’s for contract; not independent and sounds in of the will,” relationship "at it is not the the contractual while right protection; employee’s stems of an source employer, implied promise by but from the from an (MCL 418.301[11]; 17.237[301][11]). MSA compensation statute Anding (by Stephen Cooper Drew R. Drew, & Young) plaintiff. Amy L. (by Cummiskey, P.L.C. Johnson, Miller, Snell & Lubben), Craig the defendant. H.

Amicus Curiae: Dwight (by H. Vin-

Clark, Klein & Beaumont Thomas) Henry, T. cent, Michigan and Donica J. Walker Association. Manufacturers AFTER REMAND SECOND Phillips, Plaintiff Teresa J. Levin, against her former will, commenced this action at Company, employer, defendant Butterball Farms discharged claiming Inc., for exercis- that she was compensation ing rights act. the worker’s under limiting dam- orders The circuit court entered ages recoverable, to and trial has been deferred opportunity appeal Phillips provide with those orders. Phillips Appeals held that because

The Court of damages wages will, for lost was an damages of and the measure be nominal will limited. distress will also be mental or emotional Phillips although an em- that, was We hold recovery ployee will, limited to nominal is not damages, was and, that she if she can establish exercising rights discharged the worker’s under Opinion op the Court compensation act, she recover wages, pay pay, for lost back and front and mental damages. parties or emotional distress The have argued might or briefed the issues that arise length respecting mitigation of front and damages. We remand for trial.

i Phillips probationary employee was a injured at Butter- job, her ball. She wrist on the and re- August days 19, turned work on five after alleges injury. She that she claimed benefits by requesting under the worker’s act paid by that her medical bills be approxi- and, met with attitude, a hostile mately later, two weeks before the end probationary period, her was termi- nated. action,1 commenced this and the circuit limiting damages.2

court entered the orders Appeals essentially Court of affirmed the circuit limiting damages.3 court orders Appeals4 The Court of ruled that the instant factually Dep’t case was similar Dunbar granted summary disposition The circuit court in favor of Butter dismissing Phillips’ handicap ball claims of discrimination and breach implied contract. punitive court The circuit ruled that could not recover for mental or emotional distress. Appeals unpublished opinion per Court in an affirmed curiam, (Docket 118024). February issued No. This judgment Appeals vacated the of the Court of and remanded for (1991). remand, unpublished reconsideration. 439 Mich 895 opinion On in an curiam, (Docket per May 147501), issued No. the Appeals Phillips’ Court This Court found that cause of action was in contract. remanded, again vacated and this time for reconsideration light Health, Dep’t of Dunbar v of Mental 197 Mich (1992). (1993). NW2d Mich 911 App 663; 201 Mich 506 NW2d 606 v Butterball Opinion of the Court App 1; Health, 152 No.

Mental (1992), that, Order under Administrative Court, 1990-6, Dunbar. The it was bound to follow however, Dunbar.5 criticized that, it was bound to Court said

The "compelled Dunbar, it to conclude follow plaintiff’s tort, and, cause of action sounds plaintiff may therefore, all claim including action, dam- allowed that cause ages Court, for mental or emotional distress.”6 however, recoverable: limited the amount damages for her mental measure of [T]he necessarily will conñned distress be emotional arising retaliatory

proof solely of distress discharge, at will em nature of the because an being expectation no ployee has reasonable Similarly, whether employment. continued in contract, damages for lost action be in tort or an at-will wages will nominal because of continued expectation a cannot show reasonable [Emphasis employment.[7] added.]_ 5The Court said: Furthermore, presented majority ration- has no Dunbar filing retaliatory discharge distinguishing

ale for workers’ between retaliatory compensation types of claim and other public policy. discharge equally mere offensive to that are Disability Compensation Act codified that the has fact Workers’ policy against retaliatory discharge public the workers’ ignor- basis for claim is not a sufficient action, i.e., ing underlying the contrary that some basis for cause give discharge public policy grounds for so as to are discharge, though wrongful even to an action for rise employer-employee in relationship majority will.” . . . The is "at discharge type acknowledged retaliatory that a is a Dunbar explain explicit wrongful discharge, how but did not against retaliatory statutory charge public policy dis- codification of activity such cases transforms workers’ retaliatory types of tort while other into a action give apparently rise to contract actions. [Id. 668.] 669. Id. at 670. 7 Id. at 448 Mich op Opinion the Court

II employee general was an at will. The rule is "in the a absence of contractual basis holding party employ- otherwise, for to an either may ment contract for an indefinite term termi- any any, no, it nate time for reason.” Sucho- Michigan dolski v Gas Consolidated Mich (1982). 692, 694-695; 316 NW2d 710 This Court grounds continued that nevertheless "some for discharging employee contrary public are so policy toas In addition actionable.”8 to statu- tory explicit prohi- causes of action for violation of implied bitions,9 causes of action have been where discharged was failure or for refusal employment.10 a to violate law in the course of This Court continued Suchodolski that "the implied prohibition courts have found a on retalia- tory discharges when the for a reason employee’s was a exercise of a conferred legislative e.g., See, well-established enactment. Kroger App 644; Sventko Co [69 245 NW2d (1976)]; Hayes-Albion Corp, Hrab App 90; 302 NW2d 606 Both cases involved allegations discharges having in retaliation for filed worker’s claims.”11 Appeals recognized Sventko, the Court of 8 Id. at 695. following The Court to the adverted statutes: 3.548(701) (Civil 37.2701; Rights Act); MCL MSA MCL 3.550(602) 37.1602; (Handicappers’ Act); Rights MSA Civil MCL 17.50(65) 408.1065; (Occupational Safety Act); MSA and Health 17.428(2) (The 15.362; MCL MSA Whistleblowers’ Protection Act). n [Id. 2.] 10 The cited discharged cases which an for report, give testimony, failure to illegal participate file false false price fixing. 11Id. at 695-696. v Butterball Opinion op the Court discharge in retaliation of action cause filing The lead claim. generally opinion true that it that "while said party at will terminate either reason, that rule is not or for no reason opinion "the better The continued that absolute.”12 employer not free to an at will is view is that discharge employee the the when reason an part discharge of the em- an intention on the is public policy ployer the of this to contravene Appeals that, thus found The Court state.”13 although statutory explicit proscrip- no public policy there was expressed in the tion, the worker’s precluded from act an filing discharging a claim. an

hi Appeals initially The Court of determined discharge retaliatory sounded that an action for Subsequent panels concluded that in tort.14 In Dun- the sounded in contract.15 action Relying proach in a case Mich wrongful discharge retaliatory discharge discharge did not 564-565. previous panel’s the context of an formed (1988), ^[12] 13 14 id. at 646-647. Id. In reporting Goins Court Lopus 579; 292 NW2d 880 a Court of at 647. Watassek specify on Toussaint v The and thus constitutes a contract action.” concluded basis v L & L (1985), Ford Motor panel rejected abusive the nature involving reliance on Sventko was Appeals panel employment another Dep’t Shop-Rite, is that, is an action one action. practices Blue of Mental (1980), of a the mainly panel the decision in Cross discharge retaliatory discharge relationship, addressed this issue the Court stated that "an action for Mich at asserting a the of the Court ex & Blue Health, a wrongful discharge contractu. App state of an misplaced 185, 198; Shield specific type wrongful mental Goins, finding employment took a different An action Mich Watassek, supra action. Id. in because Sventko health 347 Michigan, App in retaliation occurred in NW2d NW2d 757 context of that claiming contract facility. 565. 184 the ap 448 Mich 239 op Opinion the Court bar,16 wrongful the Court ruled that action for discharge retaliation for compen- sation claim sounds in not contract.

continued that the cause of action is now statutorily- based, that, for breach of the statutory duty, action sounds in tort not contract.17 argues,

Butterball consistent Court of with the Appeals opinions concluding that the claim sounds contract, that the contractual rela- tionship is what gives Phillips’ rise cause Implied action. in every con- tends, promise is a public not to contravene policy. Thus, action for retaliatory contract discharged because the not to be arises of promise implied out in the contract. argument

This ignores the source of this right against retaliatory discharge does stem term agreed upon contracting parties, but from public policy in a expressed now statute.18 The duty not to retaliate against discharge retaliatory filing a that occurred before of the a worker’s compensation Lopus panel agreed claim. The with the Watassek panel rejected addition, ruling and in the Goins. Id. at 490-491.In the panel factually distinguishable. found both Sventko and Goins Ass’n, 715; In v Mourad Auto Club Ins 465 NW2d (1991), Appeals panel retaliatory discharge a Court of ruled that wrongful actions were contract In an actions. action for termination just-cause contract, employment of a it held that a claim for recovery retaliatory theory demotion is an of alternative a from just-cause depend of breach contract because both actions on the same Thus, pleaded facts. Id. at 726. the two not could the same addition, wrongful discharge action. In the Court reaffirmed a tort, citing Lopus. action was 727. Watassek and Id. accompanying See text n 5. retaliatory discharge A claim for under the is statuto wdca rily provided, statutory duty discharge 17.237(301X11). 418.301(11); Thus, MCL MSA a part employer on is created the of the not to employee employee’s filing an in retaliation for the of compensation statutory duty a workers’ claim. A breach of this by employer [Dunbar, supra an sounds in not contract. 10.] person discharge any A employee shall not an or in manner v Opinion op the Court compensation employee claim for a worker’s employment independently the con- from arises Lathrop Entenmann’s, 770 P2d In tract.19 (Colo 1989), appellate App, 1367, a Colorado duty employer refrain the to "[t]he court said: public of a state’s in violation from retaliation private policy source in not find its does legisla- imposed by duty it the state’s contract; tive is a adjusted body; or it one that cannot be and private lay an actions of modified bargaining agent.” a collective recognize Many of action now a cause states employee retaliatory discharge has filed majority of an who compensation claim.20The vast grounded in tort on the an action is hold that such basis tory exception express public policy statu- of a proscription.21 Supreme Court

The Nevada observed:_ against a filed discriminate complaint proceeding a employee or instituted or caused be instituted by of the exercise on under this act or because behalf afforded of himself or herself or others of 17.237(301)(11).] 418.301(11);MSA act. [MCL Chef, Inc, Norge Magic Lingle 486 US cites Div (1988), clarify this L 2d 410 distinction. worker’s 108 S Ct 100 Ed employee’s Lingle pensation question com a union was whether 301(a) retaliatory discharge preempted by § claim was 185(a). Labor-Management Act 29 USC Relations preempted Supreme that the claim was not United States Court held because, law, independent under means Illinois there was ascertaining from the had been a violation other than whether there Although law to determine the Court looked state contract itself. that, point preemption, the is well taken at least there was whether as how Illinois retaliatory it, has chosen to define interpretation discharge depend on an claim does not employment contract. Love, Sling Retaliatory discharge for a workers’ See action, Hastings L development J tort of modern claim: Recovery (1986); 554-555 anno: claim, Sling 1221. 32 ALR4th workers’ retaliation 21 Lathrop, supra (public policy); v General Motors See Buckner 1988) Co, (Okla, (statute); Springer & Corp, v Weeks Leo P2d 760 803 1988) Harrah’s, (Iowa, (statute); Inc, Nev Hansen v 100 429 558 (1984) 60; (public policy); v Mead- Firestone Textile Co P2d 448 Mich Opinion op the Court We no way know of more to nullify effective purposes basic of compensa Nevada’s workmen’s system employees tion than to force to choose between continuation of submission of of an industrial claim. In the absence injury resulting in permanent total disabil ity, employees forego most would constrained to their entitlement to industrial favor of the necessity retaining economics their jobs.[22]

In holding that such cause of action sounds in of Appeals Kansas Court observed that "the mere existence of a contractual relationship parties between the does not change the nature of action.”23 [this] 301(11)

In enacting of the Worker’s Disability § Compensation Act,24 the Legislature codified Sventko. While the contractual relationship was will,” "at the contractual relationship is not source of an employee’s right to protection against retaliatory discharge a worker’s compen- sation claim. The right stems implied not from an promise by employer, but from the statute. A seeking cause action damages from an ows, 1983) (public (Ky, policy); Lally Copygraphics, 666 SW2d 730 v (1981) 668; (public policy statute); NJ Murphy 428 A2d 1317 City Topeka-Shawnee Dep’t Services, Co of Labor 6 Kan 2d (1981) 488, 492; Co, (public policy); Duffy-Mott 630 P2d 186 In re Axel v Inc, (1979) 1; 554; (statute); NY2d 416 NYS2d 389 NE2d 1075 Motorola, Kelsay 559; 172; 74 Ill 2d 23 Ill Dec 384 NE2d 353 (1978) (public policy); Frampton v Central Indiana Gas 260 Ind (1973) (public policy). 296 NE2d 425 Harrah’s, supra Murphy, 22 Hansen v n at 64. See also n 21 supra 495; Kelsay, supra Frampton, supra n 21 21n at 251. 23Murphy, supra 21n at 493. 1989) (Okla, ("An Corp, See also Burk v K mart 770 P2d employer’s termination an at-will in contravention of a public policy clear mandate of is a tortious breach contractual ("The obligations”); Lally, supra statutory at 670 declaration of the illegality wrongful of such a underscores its and tortious available”). character for which redress should be n 18 text. See 249 v Butterball Opinion of the Court compensation act is the worker’s

who violates tort, independent in sounds not contract.25

IV holding Appeals, that because in The Court may employee will, recover she an damages, only ruled in effect or nominal limited retaliatory meaningful remedy for is no that there discharge claim. a worker’s for employed employees terms. for fixed are Some protected by union con- individual or are Others tracts employee providing that perhaps just discharged others, cause. And still just- majority, A fixed-term are "at will.” protected by employee of the that term is cause employment relationship. employees at will Unless discharge retaliatory protected from also are filing claim, no almost against protected by prohibition employee discharge employee therefor. anof Appeals supra, Dunbar, held retaliatory that, a claim for damages can claim sounds resulting and loss for mental distress improper discharge.26 panel that the Dunbar Butterball contends argues have decisions of this Court erred, and circumstances which limited the there mental distress when can obtain injury. physical no evidence of has been General this Court’s decisions Valentine v cites 256; Credit, 362 420 Mich NW2d American 25 654, 668; Corp, Foley Cal 47 Cal 3d v Interactive Data See 211; Rptr 765 P2d 373 Goins, supra (affirming at 198 an award Id. see also n wages). damages for future lost 448 Mich Opinion of the Court (1984), concerning mental distress employment contract, breach of and Roberts Co, Auto-Owners Ins

(1985), concerning the tort of intentional infliction of emotional distress.27

In Kewin v Massachusetts Mutual Life Ins (1980), 401, 419; 295 NW2d 50 this Court damages held that mental and emotional distress ordinarily were not in available an action for bad- faith breach of contract. The Court also declined to recognize a tort for bad-faith breach because it "open recovery pain would the door to for mental suffering by and caused breach of a commercial damages said, however, contract.”28 The Court that may for mental and emotional distress be awarded allegation proof where there was of tortious independent conduct of the breach contract.29 Valentine, an action for breach of contract for employment just termination of without cause, followed Kewin.30 Valentine did not address an LaCroix, Daley 4; Butterball also relies on 384 Mich 179 NW2d (1970), availability in which this Court considered the of mental negligence Daley inapposite distress in a action. is public policy. Although states a claim for violation of required physical injury Court Daley’s negligence evidence of support to damages, action an award of mental distress that limita necessarily apply tion does not to intentional misconduct. See Niblo v 351, 1989). Mfg, (Iowa, Parr 445 NW2d 354-355 at Id. 423. 420-421; Michigan Bank-West, at Id. see also Wiskotoni v Nat’l 1983). (CA 378, 6, 716 F2d Harbaugh Telephone Co, 421, This Court cited v Citizens (1916), plaintiff 157 NW 32 in which the Court that held the had independent stated a tort claim "[h]is such of the breach of contract for which however, damages may, just compensation actual include for annoyance may and inconvenience as he be able to show he by suffered reason of defendant’s unlawful act.” 30 Valentine, supra plaintiff this Court ruled that employment not recover mental distress contract. The Court observed that breach Toussaint, supra, n 15 did not rights create with a that would be actionable in tort. Toussaint dealt promise that was enforceable because of a not except arising employment terminate for cause out of the contract. Id. Opinion Court of the independently arose in tort that

action this action sounds contract.31 Because by are not limited "damages the available principles.”32 contract action in tort recognize an

Other courts have retaliatory discharge dis- for mental and emotional recovery allowed tress, Supreme The Iowa wages.33 well as as lost Court said: requiring or an it is not a crime act While conduct, wrongful outrageous motive or

malicious fair conduct and standards of offends damages in lost normally will cause the wages, monetary loss of income. In addition his Thus, "obligation gave on rise to this action is based at 258. which obligation imposed agreement parties; it of the is not an on contrast, obligation employer by discharge imposed agreement Id. 259. In not law.” claim employers does stem from term of on law and employee. and the between Corp, Appeals Sepanske v Bendix reliance on (1985), resolving Phillips’ Mich damages 384 NW2d plaintiff only holding misguided. that claim was damages for the defendant’s breach of a contract entitled to nominal providing will, stated, panel Sepanske "This is not at wrongful discharge.” of Id. a case 32 Co, Wiskotoni, supra 855 F2d n 29 at Pratt v Brown Machine 1988). (CA 1225, 6, 1242 cases, damages compensation for men- In tort "actual now include Smith, 567, 574; anguish.” Mich 327 Veselnak v 414 tal distress Wiskotoni, supra plaintiff (1982); 29 at 389. A 261 see also n NW2d claiming damages not be for mental and emotional distress would damages exemplary if mental and emotional distress entitled to damages Veselnak, damages. part compensatory are included as of supra. damages, claiming legislation regarding plaintiff a mental Absent damages statutory of mandate emotional distress for breach a and will part compensatory damages. as of be able to recover therefor Co, 26, 54-57; Kelsey-Hayes NW2d 488 Eide (Fla, 1990); 902, 2d 572 So See Scott Otis Elevator Roe, Inc, Niblo, 354-356; supra Cagle & 2d v Burns Wash n 27 at 911, 915-917; (1986); Apex Alloys, Malik v Int’l 726 P2d 434 (CA 1985) 10, law); (applying First Oklahoma Harless v F2d 80-81 Fairmont, (1982); 689-690; W 289 SE2d 692 169 Va Nat’l Bank Pratt, Wiskotoni, supra supra n 29 n 32 at 1242. also at see 448 Mich 239 Opinion of . . employee may mentally. suffer . We know logical why wrongfully discharged of a no reason employee’s damages should limited to be out-of- income, pocket suffers loss of when the employee also causally connected emotional harm. Dis- involving tressful bodily emotions injury are compensable in infringement actions for the of some . . other interest. . We believe that fairness justifies alone recovery the allowance of a full tort.[34] type contends allowing Phillips to

recover emotional and mental damages distress Roberts, supra. There, would contravene this Court declined to recognize an action in tort for inten- tional infliction of emotional distress for breach of an insurance contract.35 required plead was not separate

claim for intentional infliction of emotional dis tress to damages recover for mental and emotional distress, nor must she meet requisite burdens establishing that cause of action.36 In pleading

34Niblo, supra n 27 at 355. 35Id. at 611. This Court said that mere failure "[t]he a contractual obligation, more, outrageous without will not amount to conduct for purposes of anger this tort.” Id. at 605. Plaintiff’s did not establish distress, severe emotional grief, absent some additional evidence of depression, disruption lifestyle, or treatment. at Id. 610-611. 36 Cagle, supra 917; Malik, 81; Harless, See n supra n 33 n ('.'We supra retaliatory discharge at 689-690 believe that the tort of intent, thus, carries with it a sufficient indicia for emo part tional distress The Iowa compensatory damages”). recovered as Supreme Court stated: wrongful discharge] tort of [The is distinct from the tort of harm, intentional infliction of emotional which established an independent ground liability for mental an- guish outrageous caused intentional or reckless extreme and requirements proof greater, conduct. The are so that the law every

will feelings not intervene in case where someone’s are hurt [Niblo, or where the mental distress severe. n 27 supra at 357.] Phillips v Butterball op Opinion the Court compensation retalia for worker’s cause of action separate discharge, Phillips tory and inde stated a recovery pendent and emo of mental basis for damages. tional distress permit Appeals that stated The Court of compensatory Phillips full to recover employment con- her "at will” transform would Again, "just we into a cause” tract disagree. contract.37 Appeals said The Court Sepanske38 employment party contract will to an at "either it at term terminate for an indefinite any reason, has unless the time and for discharging specific public policy violated a employee at The Court found that employee.”39 for lost nominal will could recover tangible upon wages is no basis "[t]here plaintiff’s damages may where be assessed which expectation position which could was an will changed he have from which could or have been been terminated without consequence.”40 premised Sepanske, however, on claim in separate tort. not a breach of Phillips may recover lost We hold that wages.41 expectation that she had a reasonable would not be terminated despite compensation claim, nature of at-will relationship. Recovery employment under public policy exceptions employment to the at will independently of the doctrine arises compensated for lost should contract. App 201 Mich 670. supra. N 31 39 Id.at 826. Environair, Steelcase, Inc, Id. at see also Inc 289, 294; 475 NW2d 366 length argued parties of front have not briefed or As the damages, express opinion mitigation no these we on issues. 448 Mich 239 Dissenting Opinion by Riley, J. wages give expressed effect to mandate now 301(11). compen- § in Nominal would not employment, sate it for her nor loss would provide employers sufficient deterrence who would violate the statute.

Reversed and remanded to the circuit court trial. JJ., and concurred

Cavanagh, Boyle, Mallett, J. Levin, with (dissenting). majority J. finds that

Riley, claiming common-law action retaliation for assert- ing compensation rights arising is one in range damages. tort with full tort I I Because sounding find the in contract, cause of action type wrongful discharge gives dissent. This to a rise judicially created cause of action that at- tempts implied protect expressed policy state every legislative contract. Absent inter- wrongful discharge vention, this must be deemed being to sound in contract with the remedies reinstatement and back from the date of judgment. to the Further, date of lost wages setting recoverable, are not this at will does not have a continued expectation employment, accordingly, any and, speculative. would be Mental distress or exemplary damages simply are not recoverable a contract action.

i Generally, employment represents at will of an to terminate an "at any, no, time for or reason.” Suchodolski v Michigan 692, 695; Consolidated Gas (1982). Exceptions employ- 316 NW2d 710 to the easily ment-at-will doctrine are not found and Dissenting Opinion by Riley, J. express legislative way usually inter- come Rights e.g., vention, Act1 Handi- the Civil Rights cappers’ Nonetheless, Act.2 Civil recognized judi- Appeals3 our Court of have legisla- exception cially in the absence of created discharge is in contra- intervention where tive public important policy. Id. For of some vention exceptions part, on must be based the most these prohibiting legislative "explicit statements some discharge, discipline, treat- or other adverse the ment statutory right employees with a

of who act in accordance duty.” Id. Kroger App 644, 648; Co, 69 Mich In Sventko v (1976), Appeals our Court of deter- 245 NW2d 151 mined that one

type public policy action the asserting discharge resulting right to sue for rights. compensation Court realized The worker’s providing purpose to "the benefits that victims of injuries efficient, in an work-connected dignified, if form” would be defeated certain an when an filing could Moreover, it would frustrate such claim. liability accepted widely intent to civil abolish exchange liability em- under the act. "An in ployer yet for accept himself and

cannot that benefit for attempt prevent application act injuries employees without of his work-related the acting public policy.” Id. contravention of direct accepted tacitly this Our decision in Suchodolski Accordingly, propriety of such of action. cause an action is not at issue in question case. recoverable. is the measure 3.548(801). 37.2701, 37.2801; 3.548(701), MSA MCL 3.550(606). 37.1602, 37.1606; 3.550(602), MSA 2 MCL 644; Co, See, e.g., Kroger App v 69 Mich Sventko (1976) (retaliation claim); compensation filing Hrab (1981) (retalia Corp, Hayes-Albion App 302 NW2d 606 Detroit, claim); Trombetta tion for worker’s (1978) (retaliatory firing T & I R 265 NW2d refusing falsify pollution reports). control 448 Mich Riley, J. Dissenting Opinion fully scope of Sventko did not define the action and did not discuss the available remedies. provision simply pro It relied on a criminal interfering hibited rights with worker’s public policy.4 as the basis for the Since Legislature 418.301(11); Sventko, the enacted MCL 17.237(301)(11), prohibiting which, MSA while re asserting taliation or discrimination for compensation rights,5 indepen neither creates provides any penalties. dent civil action nor It is simply public policy. statement affirmative any event, Sventko determined that the cause of action existed without this affirmative state public policy. However, ment of the remedies have yet to be defined.

ii majority, as as well other courts in this and question states, other have resolved of reme wrongful discharge violating dies in actions public policy by classifying such an action as sounding discharge Recovery in contract or tort. Anno: filing

from in retaliation for compensation claim, workers’ 32 ALR4th 1221. If permissible usually in contract, it sounds remedies damages, include restitution economic e.g., pay. back Valentine v General American Credit, Inc, (1984). 256, 263; 420 Mich 362 628 NW2d exemplary6 damages

Mental distress or are 4 649, 17.237(125). 418.125; citing Id. at MCL MSA 5 person A employee shall not an or in manner against employee discriminate because the a filed complaint proceeding or instituted or caused to be a employee instituted by under this act or' because exercise on behalf by of himself or herself a or others of afforded this act. 6Exemplary damages generally are not recoverable in contract 257 v Riley, J. Dissenting Opinion personal, they not are

not recoverable because economic mental distress and Conversely, damages. actions, in tort damages generally

exemplary supra. permitted. Valentine, are Ap opinions Despite of our Court numerous 7 yet peals, discharge a to decide whether Court has this asserting worker’s rights directly tort or contract. With issue in sounds to us, I find the claim sound would

before contract, not tort. in necessary reaching conclusion, it is to policy Unlike at stake. the nature of the

review Rights Handicappers’ Civil Act or the the Civil Legislature Rights Act, did not create a cause expressed provide remedy. merely a It action or asserting resulting against discharge policy a Accordingly, compensation rights. be- exception judicially a created em- this is cause product ployment statute, will, and not the is on an I hold that this action based would provision implied discharge that an contract a worker’s com- generally, Brockmeyer pensation See, v Dun claim. 561, Bradstreet, 576; 335 834 113 Wis 2d NW2d & (1983); Sterling Drug, Oxford, 294 Ark Inc v (1988); Kreiser’s, 248-249; v 743 SW2d Johnson existing independent of the there "tortious conduct actions unless Co, Life 409 Mich Kewin v Massachusetts Mutual Ins breach (1980). 401, 420; 295 NW2d 50 reluctantly Appeals in the claim to The Court of this case found Health, tort, Dep’t relying in Mental 197 Mich on Dunbar v sound App (1992), pursuant to Administrative Order No. NW2d (1993). panel, 1990-6, lxxxiv, extended. 442 Mich 911 as however, appropriately opined in the claim more sounds con decisions, authority split on this these there was tract. Before finding the see For case claim sound issue. an additional App 198; v Ford Motor 131 Mich Goins finding see Mourad Auto For cases claim sound Ass’n, (1991); Lopus App 395 430 NW2d L & Ins 186 Mich 465 NW2d Club 486, 491; (1988); App Shop-Rite, 171 Mich L Health, 556, 564-565; Dep’t of Watassek v Mental Riley, J. by Dissenting Opinion 1988). (SD, 433 NW2d This is a specific wrongful type discharge, indistinguisha- discharges types explicitly ble from other not Legislature. made actionable public policy implicit Moreover, the in this claim right to enforce or recover attrib- injuries uted to work-related that arise out of and employment are incidental to the contract. implied every right words, other contract is the compensation rights to assert worker’s without being discharged against. Indeed, or discriminated liability associated with worker’s negligence does derive from the fault of the employer, theory, i.e., tort traditional but from injury "arising employ- out of the course of 17.237(301). 418.301(1); ment Accordingly, . . .”. MCL MSA statutory right with the entitled to protection relating to the contract, any intending protect cause of action Any should likewise sound in contract. further response legislative protecting public policy political govern- should left be to the branch of through judicial legislation. ment, not the courts

hi Because the claim sounds in the reme- accordingly supra. dies If are Valentine, limited. See plaintiff proves discharged that she was asserting rights under the worker’s important public policy, act, she should appropriate, reinstatement, entitled to if and back from the date to the date of judgment. While it is true that an at will discharged any could be time, reason at public policy implicated the exception, in this case creates an proven,

which, when forces the em- ployer illegal to bear brunt act, of this rather 259 v Butterball by Dissenting Opinion Riléy, J. awarding employee.8 Hence, back

than the appropriate, any judgment less the of until mitigation.9 time Brockmeyer, Oxford, Johnson, and See supra. inap action are in this contract

Other remedies propriate at will does an employment, expectation of continued have speculative. See and, hence, are further 502; 89 Detroit, & 129 Mich v M R Sax G H (1902); Corp, Sepanske 147 Mich 368 v Bendix NW (1985). Moreover, exem 54 damages simply plary are not or mental distress supra. Valentine, in contract actions. recoverable IV policy given public importance any and of appropriately required the left to are the remedies political Reviewing government. of branch expressed by possible various remedies scheme of legislatures, remedies, i.e., tort traditional state reinstatement, up year’s penalty one

civil remedy pay, back administrative reinstatement pay, thereof,10 con- combination and back Legislature fashion exact should firms that judicial parameters A man- cause of action. this employer’s remedy protect injured, from an This would worker advantage employers eliminating inequitable by would retaliation reinforcing employees to seek redress have and otherwise injuries of retribution. These without fear their work-related public policy underlying issue so that serve the remedies would employees longer of their no to choose between retention would have injuries. being v jobs compensated Hansen for work-related (1984). end, Harrah’s, 64-65; justice P2d 394 In the 100 Nev making wronged employee by within the whole would be served by Legislature. public policy that is undefined context (After Indemnity See, generally, Marquis & Accident Hartford Remand), 638, 652; NW2d 799 fíling Love, Retaliatory discharge for a workers’ See action, Hastings L J development tort of a modem claim: (1986) legislatures). (describing responses various state 448 Mich 239 Riley, J. Dissenting Opinion permissible date that all tort remedies are is not appropriate. Legislature If the intended or intends damage to make Civil remedies similar to those in the Rights specifically. Act, it should do so alleging wrongful I would find an action dis- charge claim to sound in and, hence, contract be limited to tradi- appropriate tional contract case, remedies. In this remedies would include reinstatement and back from the time to the date of judgment. Legislature If the desires to further protect public policy, this it can and should do so specifically.

Brickley, C.J., J. Riley, concurred with part J., took no in the Weaver, decision case.

Case Details

Case Name: Phillips v. Butterball Farms Co.

Court Name: Michigan Supreme Court

Date Published: Mar 21, 1995

Citation: 531 N.W.2d 144

Docket Number: 97976, (Calendar No. 14)

Court Abbreviation: Mich.