*1 retary’s light of the number of decision to revoke MacClareris [I]n [MacClar- violations, justified willful the seriousness of in en’s] PACA license fact and was violations, the 29- willful [MacClareris] not an abuse of discretion. period during which the viola-
month III. occurred, the number of [MacClar- tions altered employees who United eris] above, For all the reasons set forth we in- Department Agriculture States Secretary. affirm the decision of the certificates and made false ac- spection sales, money amount counts of underpaid pro-
which its [MacClaren] brokers, suppliers [Mac-
duce and/or salespersons retention of the
Clareris] conduct, engaged
who the unlawful failure to principal’s [MacClareris]
and prepared [its] review transaction files Stephen HIMMEL, B. Plaintiff- I salespersons, penalty conclude a civil Appellant, would not be sufficient to deter [Mac- violators potential and other Claren] from future violations of the PACA. COMPANY, FORD MOTOR determining Gregory MacClar- Defendant-Appellee. negligent en and Darrell Moccia were No. 01-4277. failing to review their salesmen’s transac- files, Secretary tion considered the Appeals, United States Court of PACA, requirements testimony from an Sixth Circuit. experienced manager in the sales produce Argued: A industry, testimony April and from the USD 2003. sanction Based on the prohibi- witness. Sept. Decided and Filed: 2003. testimony tions set forth PACA and the appropriate supervision by manager reviewing salesperson’s includes transac-' files,
tion at sampling least on random
basis, Secretary concluded that “failure portion
to review a least a of the transac- ... prepared by salespersons
tion files gross negligence.”
constitutes Because sufficiently sup- are
these conclusions record,
ported by evidence
the Sec-
courage
cooperate
determining only
Secretary
other dealers to
with inves-
whether the
made
tigators
attempt
We
to make restitution.
judgment in the choice of reme-
an allowable
recognize
argument.
the merit in MacClaren’s
Co.,
at
dy. GloverLivestock Comm'n
411 U.S.
note, however,
imposing
We
that a
do
while
revocation and a
Labor Relations Act (“LMRA”), § alleging: U.S.C. improperly agreed with the United (“UAW”) percent that ten Auto Workers *3 hires be referrals from of its UAW (2) officials; Himmel was forced Ford to hire a referral from the UAW’s National (3) Department; improper- Ford and Ford ly grievances with settled two awards of Ford, pay. against back Himmel filed suit alleging wrongfully that he was terminated in retaliation for his and that public policy such termination violated the as in of the expressed Section 302 (briefed), Paul R. Moran Robert J. Holl- LMRA. granted The district court Ford’s briefed), ingsworth (argued and Cors & summary judgment, reasoning motion for OH, Bassett, Cincinnati, Plaintiff-Ap- that Himmel’s would not jeop- pellant. public policy ardize Ohio because Himmel (argued Holcombe and David G. had in Ford’s participated both violations briefed), (briefed), Baker Amy L. Garrard independent and committed his own viola- Cincinnati, OH, Hostetler, & for Defen- timely the LMRA. Himmel filed a tions of danri-Appellee. appeal. notice of illegal Because the conduct of an em- ROGERS, Before: and Circuit MOORE ployee automatically does not bar his ac- KATZ, Judge.* Judges; District in wrongful discharge tion for a violation of law, we RE- public policy under Ohio MOORE, J., opinion delivered the judgment and VERSE the district court’s court, KATZ, D.J., joined. in which proceedings REMAND for further consis- ROGERS, 602-606), delivered a (pp. J. opinion. tent with this dissenting opinion. separate OPINION AND I. PROCEDURAL FACTUAL HISTORY MOORE, Judge. Circuit Beginning B. Himmel Himmel was em- Plaintiff-Appellant Stephen (“Himmel”) Sharonville, Ohio, trans- appeals ployed the district court’s at Ford’s (“Sharonville”), grant summary judgment plant to Defendant- mission first as (“Ford”). then Appellee Company Specialist Ford Motor Labor and as Su- Relations Relations, Hourly Per- employment pervisor Ford terminated Himmel’s as of Labor Relations, sonnel, Supervisor Hourly Safety. capacity of Labor and his as Personnel, responsible Himmel was for all Safety supervisor, October 1997. involving hourly to his termi- workers. Be- According prior matters nation, represented hourly Ford’s complained he had about the labor cause the UAW Sharonville, Himmel practices personnel that violated Section 302 of the served Katz, Ohio, designation. sitting by *The Honorable David A. United States Judge for the Northern District of District available representative positions Union with other hires. When as Ford’s daily for the administra- responsible journeyman positions three electrician be- bargaining agree- June, of the collective tion opted came available Ford and the UAW. ments between promote qualified employees already three working at rather than Sharonville to hire Himmel, during his tenure According Forste, a Department National Ford refer- he supervisor, as a Department ral. The National Ford in- improper favoritism UAW about Ford’s they formed Himmel that considered his Specifically, Himmel maintains officials. hiring “a slap decision the face.” Joint objected to three instances of that he (“J.A.”) Appendix at 135-36. Himmel had alleged improper conduct: Ford’s *4 promoted the three employees Sharonville that agreement with UAW ten Ford’s requiring without first their completion of percent hiring of its nationwide would be test, a skilled-trades and National (2) officials; referrals from UAW Ford’s (“Forste”) Department pre- Ford threatened to make hire Richard Forste decision to hiring testing upcoming an issue at Ford’s give priority after Himmel refused to sta- negotiations national with the UAW unless as a referral from the tus to Forste UAW’s way to hire Sharonville found Forste. Department; National Ford and Ford’s Although open there were no positions re- the settlement of an handling of Sharonville, maining at Ford’s Powertrain grievance. Operations division decided to hire Himmel, According long to Ford has complained Forste.1 Himmel to his Pow- agreed percent that ten of its national Operations supervisors ertrain about the comprised be of referrals hiring would forced hire and complaint filed written from individual UAW officials. The with Ford’s Office of General Counsel.2 In Ford Department gives UAW’s National spite of complaints, Himmel’s Ford or- Headquarters, referrals to Ford’s World Forste, dered hire Sharonville to and Him- passes in turn the reference along which to complied mel with the order. plants. plants Ford forces its to individual referrals, give priority status to these ac- deciding While Ford was to cording by refusing to to support Forste, hire journeymen two electricians that refuses to do when that plant so nearby plant at a Ford asked to be trans- object plant pressure. is the of Union plant. ferred to Sharonville The electri- Himmel maintains that he cians, Frank Kuykendall (“Kuykendall”) ten-percent policy to his superi- about this (“Jackson”) and Ruth griev- Jackson filed occasions, although ors on numerous against ances through Ford the UAW in complaints content and time of these Kuykendall October 1996. According unclear. Jackson, the collective bargaining agreements Ford ordered between Ford and the September Shar- UAW required prefer onville hire a National Ford Sharonville to Ford em- Depart- expressly ployees employees ment referral after Himmel had over non-Ford applying hire the referral and all open position. declined to filled for an electrician Jackson Department standing griev- 1. Forste was not a UAWmember and did not had no to file a employment application, submit interview Department and that ance the National Ford position, for the or take a test. skilled-trades good oppose had no reasons to his hires— three UAW members—when its own referral specifically allege 2. Himmel did not in his was not a UAWmember. illegal, that Ford's conduct was complaining instead that the National Ford Ford, Himmel had com- it concluded that Ford and against a grievance also filed Relations violations of Ford separate National Labor mitted seven with the UAW (“NLRB”) in December subjected which could have Ford to Board Kuykendall finally transferred liability. Ford criminal civil Ford decid- When and/or February to Sharonville discharge appropriate pen- and Jackson was the ed that dispute the issue they continued employment alty and terminated agreed Ford In June pay. back in October 1997. for 420 and Jackson
pay Kuykendall both against Himmel filed an action hours the number of pay, of back hours single count of alleging October between the date Forste had worked that public on wrongful discharge based Ohio’s day Kuykendall before of his hire and policy exception employment-at-will to Sharon- were transferred and Jackson as- argues doctrine. Himmel that Ford’s ville. grounds pre- for his were serted that, upon learning of alleges promotions maintains textual and settlement, immediately complained he gave legitimate previously he were ” ‘illegal.’ “it and is ‘stinks’ his boss approved by Ford labor officials. Accord- *5 (Himmel Aff.). Moreover, a J.A. at 176 Himmel, actually Ford terminated ing to later, a Pow- Himmel informed few weeks him in for his about retaliation that the settle- Operations ertrain official Ford’s conduct in violation of Section 302 law” when she tele- ment violated “federal LMRA, prohibits employers of the which had issued him to ask whether he phoned “any ... agents providing and their According to payment. the settlement official. thing of value” to a union or union Himmel, to the agreed prior had Ford 186(a). § Himmel maintains 29 U.S.C. Jackson, the more only settlement pub- implicated that Ford’s violations have received employee who would senior permitted his lic and therefore standing grieve had position, Forste’s discharge action. wrongful non-Ford-employ- to hire a Ford’s decision (cid:127) granted court Ford’s motion The district According to applicant ee at Sharonville. concluding that summary judgment, for Himmel, not entitled to a Kuykendall was recovery wrongful Himmel’s for only likely received one be- remedy, and by participation was barred married to the niece of cause he was by his of 302 and Ford’s violations official who ne- Department National Ford of Section 302. own violations Moreover, Him- the settlement. gotiated timely appeal. notice of filed under the terms of mel maintained that pay the back award the labor contract to the only extended back
should have II. ANALYSIS refusal of Ford’s settlement UAW’s latest Review A. Standard of offer, not to Forste’s start date. grant court’s review the district We initially com- days
A few
after Himmel
Equitable
novo.
summary judgment
de
Kuyk-
impropriety
of the
plained about
Poe,
Soc’y
v.
Assurance
U.S.
settlement,
began investigat-
endall
Life
(6th Cir.1998).
1013,
Sum
143 F.3d
1016
he had
ing Himmel to determine whether
“if the
appropriate
mary judgment
collective bar-
improperly promoted UAW
to intér
depositions, answers
According
pleadings,
gaining representatives.3
dispositive to
facts are not
length the
nate
these
Although
parties discuss at
case.
our resolution of the
surrounding
decision to termi-
facts
Ford's
file, together
228,
admissions on
rogatories,
(1990),
St.3d
Ohio refers to claims of consider whether wrongful Himmel has established discharge public policy genuine violation of a as issue of material fact as to each Greeley claims. See Greeley Miami element of Greeley his claim. anAs initial Contractors, Inc., matter, Valley Maint. 49 Ohio we note that the of clarity issue Diversity exists between principal place an. Ohio rated in and has its of busi- citizen, Ford, incorpo- a business ness states other Ohio. than favor; analytical originally Ford who articulated Himmel’s resolved in has been subsequently adopted 302 of the that was “that Section framework appeal on concedes public sufficiently clear for by Supreme LMRA embodies the Ohio Court claims, foundation for steps jeopar- as the policy to serve has identified three (1) Br. at claim.” Ford kind of wrongful dy analysis: determine “what Moreover, it clear that Himmel 33-34. necessary public to further the conduct is of material genuine issue (2) has established issue; whether the policy” at decide overriding causation and fact as to both within the employee’s actual conduct fell Collins, 652 N.E.2d at justification. See by policy; of conduct this scope protected law, that, these under Ohio (explaining employees would consider whether of fact questions are two elements engaging in similar discouraged be causation, respect to jury). for the With the threat of dismissal. by future conduct terminated that Himmel was argues Ford Perritt, supra, at 408. Given and the company policy Ford violating reliance on Professor Supreme Court’s LMRA, pre- Himmel has of the but jeopardy of the ele- Perritt’s articulation his contrary suggesting evidence sented cases in- subsequent ment in Collins and motivated termination was claims, we believe that volving Greeley of the Ford’s violations complaints about analysis jeopardy Perritt’s framework of Similarly, LMRA. policy of the public analysis guidance in our provides that Himmel en- has introduced evidence facts at hand. which amount- wrongful conduct gaged provides LMRA 302 of the jus- overriding business legitimate to a ed any employer shall be unlawful for “[i]t dismissing Himmel. tification for lend, deliver, or pay, agree ... or evidence that argument counters this with deliver, lend, other any money or or pay, company with his conduct was accord any organiza ... labor thing of value light parties’ law. In policy and the thereof, tion, or or officer and how to inter- disputes about facts represent, or represents, seeks which them, that Himmel es- pret we conclude any of the membership, would admit fact issue of material genuine tablished who are em such employees of *7 justifica- overriding as to the causation and industry affecting in commerce.” ployed an his claim. There- tion elements of 186(a). Congress § en 29 When U.S.C. fore, jeopardy will on the inquiry our focus 302, “concerned with it was acted Section claim. element of through bargaining of collective corruption Policy Jeopardizing Public 1. Ohio’s by bribery employee representatives of by employee employers, with extortion charac Supreme The Ohio Court possible and with the representatives, question as a jeopardy inquiry terizes the power which by union officers of the abuse Therefore, for court. Id. of law for the if funds were they achieve welfare might must de summary judgment purposes, we Arroyo v. Unit left to their sole control.” employees un dismissing termine whether 425-26, States, 419, 79 S.Ct. 359 ed U.S. of Himmel’s dis der the circumstances (1959) (footnotes 864, omit L.Ed.2d 915 3 public the clear jeopardize missal would 302, ted); No. Turner v. Local Union see yet has to policy of Section Ohio 1219, Teamsters, F.2d Bhd. 604 Int’l for ana adopt analytical clear framework of (“The (9th Cir.1979) pur dominant 1227 of this lyzing jeopardy, and discussions employers from prevent § 302 to quite pose often element Ohio courts are offi- Perritt, Jr., loyalty of union However, tampering with the Henry H. brief. 600 to union from prevent
ciáis and
officials
his
wrongdoing
at the time
extorting
employers.”)-
tribute
Moreover,
he complained to Ford.
no Ohio
short,
public policy
of Section 302 can
that,
suggests
law
at the time of his com-
preventing
be described as
in
corruption
plaint, an employee must be certain that
union-employer relationships.
the seemingly inappropriate conduct is ac-
tually illegal.
City
See Fox v.
Bowling
Corruption
union-employer relation
Green,
534,
898,
76 Ohio St.3d
668 N.E.2d
ships will often not come to
light
(1996)
902
(explaining
the context of the
reporting by
absence of
an insider in the
Statute,
Ohio Whistleblower
Ohio Revised
Therefore,
process.
to achieve
4113.52,
§
Code
“requir[ing]
that an
302,
goal of
employees
must be in
actual violation must occur for a whistle-
a position
they
where
are able to articulate
gain protection
blower to
leads to nonsen-
their
and suspicions
observations
of such
unjust,
sical results which are
unreason-
See,
corruption.
e.g., Kulch v. Structural
able,
contrary
spirit
Fibers, Inc.,
134,
78 Ohio St.3d
677 N.E.2d
public
Rather,
statute and
policy”).
an
308,
(suggesting that Ohio
employee simply must have had a “good
employees
report
legitimate
needs
faith belief that
complaint
[his]
was valid”
safety
health and
concerns to further
Kulch,
at the time of
complaint.
his
Ohio’s policy favoring workplace safety),
324;
Prods.,
N.E.2d at
Pytlinski v. Brocar
abrogation
grounds
on other
recognized by
Inc.,
385,
94 Ohio St.3d
760 N.E.2d
Brooklyn,
Krickler v.
App.3d
(2002) (allowing a Greeley claim
where
(2002);
leged
union-employer relationships,
of
corruption
Barring
Greeley
2. Conduct
Claim
objections constitute conduct
Himmel’s
analysis
the above
indicates
Although
of
scope
the
within
Section
Himmel
jeopardy
that
has established
for
permitting
that
Finally,
recognize
we
claim,
Ford never-
purposes of his
in
for
to dismiss Himmel
retaliation
Ford
alleged
that
theless maintains
Himmel’s
Ford’s
complaints
poten-
about
Himmel’s
as his
violations of Section
as well
union-employer
of
relations
corruption
tial
of
participation
alleged
Ford’s
violations
discourage
employees
other
would
this court from find-
preclude
future conduct
complaining
from
about
Ac-
ing
jeopardy
that
element is met.
the
corrupt
further
to
Ford that
threatened
Ford,
cording
this
there-
to
court should
Kulch,
at
relations. See
677 N.E.2d
those
of
grant
fore affirm the district court’s
allowing an
(explaining
employer
summary judgment
jeop-
for Ford on the
filing
for
com-
to dismiss
ardy
of
claim.
element
would deter
plaint
practices
about unlawful
legitimate
jeopardy
reporting
The
element of
employees
other
from
(“The
concerns); Perritt,
at 408
claim
into
con
supra,
plaintiffs
takes
account a
analysis] is to
substep
jeopardy
only
necessary
[of
third
extent
to deter
duct
likely
if the threat of dismissal
scope
decide
mine
it falls
of
within the
discourage
employees
future to
the
the
necessary
public
to
conduct
further
conduct. The
engaging
from
similar
Perritt,
at 408.
policy
supra,
issue. See
always
almost
question
to the third
answer
case,
em
In this
of
”).
‘yes.’
wül be
contrary
that are
ployer activities
public policy of Section
are essential
Therefore,
employee reporting
because
that statute.
furthering
purposes
of
might
of
activities
violate
only
re
look
at Himmel’s
We therefore
necessary to
is conduct
further
Section 302
necessary
it
not
porting
complaints;
of
Him-
policy
of Section
because
jeopardy analysis
purposes
scope
conduct falls within the
of this
mel’s
im
allegedly
examine
of Himmel’s
pohcy, and because Ford’s dismissal
Moreover,
because
proper conduct.
discourage
employees
would
other
ques
jeopardy
as
inquiry
describes the
potentially
complaining
conduct
about
Collins,
court,
relations,
tion
law for
we
corrupting union-employer
summary judgment
at the
N.E.2d at
light
that the
viewed
conclude
facts
only
stage,
jeopardy inquiry
serves
to Himmel establish under
most favorable
be
public
un-
dismissing employees
policy
determine whether
“[t]hat
Ohio law
alleged
our
wrongdoing is
relevant
equally
302's
not
violative of Section
*9
corruption
union-employer
against
rela-
analysis
fell within
of whether his
tions,
Him-
and
Ford’s conduct which
by
protected
scope
the
of conduct
actually
illegal. At
above,
mel
was not
Moreover,
as discussed
however,
only
inquiry,
in this
Him-
issue
obligated
do
before
was not
research
complaining
about
conduct
Ford’s
mel’s
apparent corruption.
complaining about
illegal
potentially
Himmel’s own
activities.
by permitting
employer
an
jeopardized
jeopardy
and,
as a matter of law
viewing
an
on the
employee
dismiss
facts viewed in the facts in the light most favorable to
to a
light
plaintiff
the
most favorable
em-
we conclude
genu-
that there are
ployee.
ine issues of material fact as to causation
overriding justification.
For
these
recognize
alleged
We do
that Himmel’s
reasons and because
clarity
of Section
may be
wrongful conduct
relevant to the
policy
302’s
not in dispute,
we RE-
Greeley
resolution of his
claim in other
VERSE
REMAND the district court’s
respects,
ability
however. Himmel’s
to re-
judgment for
proceedings
further
consis-
Greeley
impacted by
cover under
will be
analysis.
tent with this
alleged
his own
violations of Section 302
likely
because such violations are
relevant
ROGERS, Circuit Judge, dissenting.
to the elements of causation and overriding
dissent,
I respectfully
my
because in
justification.
It would be difficult for an
view Himmel has failed to establish the
employee to show that his dismissal was
jeopardy
Greeley.
element of
That ele
by
public
“motivated
conduct related to the
requires
ment
us to determine whether
policy” at
if
point
issue
his
could
“dismissing employees under
circum
to the employee’s illegal conduct as the
stances like those
plaintiff’s
involved in the
Collins,
cause for dismissal.
652 N.E.2d
dismissal would jeopardize
public
poli
(internal
omitted).
at 657
quotation
Simi-
Rizkana,
cy.” Collins v.
73 Ohio St.3d
larly, it
would be difficult for an
(1995).
652 N.E.2d
to establish the absence of a legitimate
overriding
justification
business
for his
matter,
As an initial
I would apply the
if
termination
has violated
standard for making the jeopardy determi-
company policy and federal law.
In this
nation that the
Supreme
Court has in
sense,
allegations
Ford’s
that Himmel vio-
case,
fact
in a
used
similar
rather than one
lated Section 302 are relevant to the out-
drawn from Professor
journal
Perritt’s law
come
of Himmel’s
claim. Howev-
article, although
analysis
under either
er, because Himmel has demonstrated a
should probably lead to the same conclu-
genuine issue of material fact with respect
Parts,
sion.
In Wiles v. Medina Auto
elements
causation and overriding
(2002),
Ohio St.3d
Because we do not believe that Ohio law seriously compromise objectives regards complicity employer’s either an provides law that policy source for the wrongdoing independent or wrongdoing as (“[W]e claim. See id. at 531 must assess claims, automatic bar to whether the absence cognizable of a Gree- by district court concluding erred ley claim solely based on a violation of the Ford was entitled to summary judgment.
FMLA would seriously compromise the III. CONCLUSION statutory objectives Act’s by deterring eli- gible employees from exercising their sub- above, For explained the reasons we added)). rights.” stantive leave (emphasis conclude that the district court erred in granting Ford summary judgment on Given that the intent of Section 302 of grounds that claim was the LMRA—the statute whose Him- barred Himmel’s own alleged violations mel relies on—is essentially prevent of Section 302. Himmel has established' employers and corrupting unions from one
603 employer’s wrong- of his or her another, present complain in the case inquiry the cases have not dis- denying doing. While Ohio concern should seriously compromise explicitly, way this matter the that would cussed Greeley claim corruption. of has treated policy against Supreme the Court Section 302’s cases,1 shown that it adequately generally has not certain as well as its ex- claims,2 Greeley do so. attitude toward pansive court re- indicate that an Ohio would not clearly fur- policy is anti-corruption An specifically that Himmel have re- quire exposes his em- employee when an thered gen- statute at issue. More ferred the to an outside corrupt practices ployer’s suffice, may but to find a allegations eral authority. may It also be enforcement policy, a the implication of statute’s serious furthered, certainly, less when an albeit alleged have that employee should at least practices to author- employee exposes such in a acting illegally the has been and Ohio courts company, within the ities that shows a direct concern with context in such eases. See Greeley claims allow Any- the policy underlying statute. Prods., 94 Ohio St.3d Pytlinski v. Brocar provide public than this would thing less (2002). n. 3 This N.E.2d 388 760 protecting of action com- policy cause assumes, however, is that author- promise that do not to alert plaints whistle, telling people truly blowing the not illegality, and hence do ities about change things that power who have implicate public policy. on, that going so those something illegal choose either to correct people can case, Himmel for- present brings In the themselves. culpable problem or become things three that he ward about a complains if an employee But with agreement Ford’s unwritten about: policy it a poor he thinks practice because hir- that 10% of Ford’s nationwide UAW choice, corruption or say, alleges no individual ing will be referrals from UAW complains then those to whom he illegality, (“10% hiring policy”), officials suspect reason to presumably will have no Forste, Kuyken- settlement with and the evils, anti-corrup- 302’s and Section such policy, the 10% the rec- Regarding dall. by his not be furthered policy tion will “com- only that Himmel ord indicates complaint. within Ford.3 superiors to certain plained” as to issue, then, Similarly, largely the record is silent degree A preliminary hire initially opted not to why Himmel which an must specificity with preempt claims based on according does example, to the factual state- not 1. For Green, Wiles, Bowling City whistleblowing). 76 Ohio But see 773 N.E.2d at ment in Fox v. (1996), plain- may bring St.3d 668 N.E.2d (holding plaintiff not may reported some laws tiff "that he believed solely pub- on the that is based claim violated,” (emphasis add- id. have been Family, in the federal lic embodied ed), apparently enough for a and this Act, pro- because the remedies Medical Leave Similarly, claim. Whistleblower Statute adequate). act are vided the federal Fibers, Inc., 78 Ohio St.3d Kulch v. Structural (1997), the court was not N.E.2d 308 regarding Him- only I find 3.The reference that OSHA found the deterred the fact hiring Forste is motivation for not mel’s regulations employer to be in violation of Freeman, a Labor Rela- by Rich statement plaintiff had accused the than those the other Opera- Specialist at Ford's Powertrain tions violating. id. at 310. employer of See Division, opted that Himmel who said tions preferred "insid- Kulch, against because he Forste (continuing at 328 2. See 677 N.E.2d See J.A. at 189. action to "outsiders.” expansion cause of .ers” Statute by holding the Whistleblower *11 604
Forste, though complained may any made concerning have the so,4 company’s any actions at being required do there time? later about to complaints Oh, indication that is no his I I respect A. think said it with anything than [Kuykendali/Jaekson] amounted to more “the to the grievance settlement, beef,” I employee thought that that that was im- quintessential “man proper. agement incompetently.” has acted Mur Gardner, ray Q. Question was, 741 F.2d you allege that [did (D.C.Cir.1984). following excerpt The it a violation specific was] of a statute[?] Himmel’s deposition pertinent: from is complained A. I that it fed- violated eral law.
Q.
you
The complaint
that
made
Operations
[Powertrain
to
Division of-
J.A. at 407-08. This
Him-
establishes that
ficials,
hiring],
about Forste’s
did it mel
illegality only
relation
settlement,
specific
Kuykendall
a
to the
any
include
reference to
vi-
and even
laws,
complaint
then his
“federal
only
or
concerned
olation of
labor
Labor
this,
Act,
law.”
apparent
On
basis of
it is
Management
or any
Relations
that
policies
Section 302 would not
specific
other
labor law?
seriously jeopardized
be
if we disallowed
no,
think
Specifically,
may
A.
but I
I
claim based on his com-
have mentioned that
wasn’t cov-
[Forste]
plaints
about
the 10%
and the
under our
ered
contract either
an
hiring. With respect
Kuyk-
Forste
standpoint.
EEO or NLRB
settlement, however,
endall
Himmel’s com-
Q. That was
complaint
not a
that the
plaints in that
instance at least invoked
company
doing
violating
this is
such
“federal law.” It
questionable
statute,
and such a
was not
that
this
to
is sufficient
assert a
claim.
your
nature of
complaint?
is,
that
Assuming
it
the inquiry then be-
say
A.
I didn’t
that.
reasonably
comes whether Himmel
be-
Q.
you say
respect
Did
that with
to
lieved that Ford’s
payment
settlement
objections that
you Kuykendall
or
violated Section 302.
record
did
The
indicates that Himmel
not
A whistleblower could never be
that a
certain
complain
illegal.
actually
that Ford’s
was
In-
been
action
statute has
violated until the
stead,
Fox,
questioned
perpetrator
why
guilty
he
would listen
was found
in court.”
Department
(emphasis
original).
UAW's
at 902
National Ford
N.E.2d
("NFD”)
standing
add, however,
when the latter had no
I would
that it makes sense
grievance,
argued
file
and he
that it was
apply
the reasonable belief standard more
hires,
illogical
oppose
for the NFD to
his
strongly where the law
is clear and
em-
given that all three were UAW members and
ployee
facts,
mistaken
as to the
than to a
(as
applicant, only)
Forste
an
was not a UAW
where the
situation
facts are clear and the
member. See J.A. at 405-06.
employee is mistaken as to the
Where
law.
concerned,
factual
are
matters
it would be
notes,
majority
bringing
5. As the
require
an
burdensome
that a
em-
concerned
ployee investigate
claim need not show that his or
positive
her
until he or she was
violating
actually
something
happened.
law in
had
Hence the
rather,
question;
protects
need show
employee’s
law
an
reasonable belief
only
that,
that the belief was reasonable. The ra-
that certain actions occurred —actions
if
shown,
tionale for the
alternative
clearly illegal.
Interesting-
standard is that the
would be
court,
require
blowing
standard-to
ly,
em-
illustrating why
the Fox
reason-
whistle—
ployee
reported
sense,
to show that he or
just
she
an
able
standard
posited
belief
makes
actual
violation—would mean
"each
such a situation:
whistleblower
equal
Suppose
dispatcher
would have to become
compa-
that a
of a taxi
policeman,
parts
prosecutor, judge,
jury.
ny
on-duty
is told
that the
driver
*12
DeBrouse,
v.
652 F.2d
See United States
settlement could
that the
argues
Cir.1981)
(4th
un-
(holding
an
that a
302 because
not have violated
“thing
a
of value”
“intangible”
of an
ion official had received
conferral
employer’s
here,
Ma-
George
obeyed
union official
had
the offi-
employer
where an
benefit —
allegedly-
securing
an
weekly payments
son’s satisfaction
cial’s command to deliver
for his
payment
else,”
settlement
improper
“or
and the official
party
to a third
a
constitute
husband —cannot
niece’s
being
the benefit of
able
had received
value” under
that
section.
“thing
obedience).
of
employer’s
the
command
is
authority
proposition
for this
Ford’s
third-party beneficiary
question
The
(2d
Cervone,
F.2d 332
States
United
cases, then,
intangible
is whether the
ben-
Cir.1990),
had deliv-
employer
in which an
sufficiently
by the union was
efit received
official to a
through a union
ered a bribe
case,
present
In the
the
substantial.
held
and the Second Circuit
party,
third
purposes
whether —for
of our
problem is
official received
any benefit the union
that
the LMRA’s anti-cor-
inquiry into whether
did
for the bribe
being the conduit
“seriously jeopar-
would be
ruption policy
sufficiently tangible “thing
a
not constitute
by denying
dized”
But
does
value.” Id.
Cervone
intangible benefit re-
alleged
claim—the
that an intan-
proposition
for the
not stand
sufficiently
ceived Mason constituted
is,
that
not
a benefit
is
gible benefit —that
value” make Him-
“thing of
substantial
enrich-
of direct material
in the form
Kuykendall
the
settle-
mel’s belief
value”;
“thing
be a
ment —can never
“federal
law” a
ment
violated
payment
rather,
in that case
any benefit received
reasonable belief.
(“[I]t
evanescent. See id.
simply
was
too
not suffi-
my
In
the benefit was
view
intangible
clear what
bene-
anything
but
the cor-
ciently
DeBrouse
substantial.
received, and that
official]
fit
union
[the
evident be-
payments
was
ruptness
but
only intangible
seems not
benefit thus
party
given
it
that the third
cause was
unidentifiable.”).
Further,
courts
also
way
in no
payments
the
who received
intangible
more substantial
have held that
them,
na-
(as
and the substantial
entitled to
qualify,
can
even where
benefits
case)
“thing of value” was evident
ture of the
the direct
present
and in the
Cervone
sys-
made
payments
the
were
party.
part because
went
to a third
material benefit
hand,
(On
the
where
anything.
the other
employee believes that
driver is drunk. The
illegal-
merely complain of
employee does not
driver does indeed sound intoxicated.
the
supervisors,
reports the
but
ity to his or her
dispatcher
down the
the
need to chase
Does
driver,
entity
regulatory
breathalyzer
suspected violation to some
sobriety,
perform field
employer, the reasonable belief
report
the
may
to his
outside
and blood tests before he
apply just
strongly to
as
driving
standard should
supervisor that the driver is
while
mistakes.)
intoxicated?
then,
decisions,
this,
also
could
The Ohio court
the rationale under-
Id. In situations like
an
claims where
read to allow
is in full
be
lying the
belief standard
reasonable
force,
employ-
employee reasonably
that the
liberally.
believes
applied
and should be
hand,
employer
something, where if the
employer
done
the
er has
the other
where
On
it,
employer
be in
actually
the
did
claims it is do-
admits to what
Schott,
See, e.g., Sabo v.
(and
of the law.
undisputed),
are
violation
ing
hence the facts
527,
a settlement of a union member’s value,”
ance “thing even where the
grievance may have been unfounded.
sum, where there is serious doubt as to whether Mason did anything improper, LOCAL 6-0682 INTERNATIONAL UN PAPER, Allied-Industrial, and where ION OF benefit Mason received was Energy Workers, Chemical & AFL- too insubstantial to constitute a violation of CIO, CLC, ex rel National Industrial 302, Section reasonably Himmel could not Group Plan, Pension Local f/k/a that the settlement was believe obtained in Paperworkers United International violation Section 302.6 Union, Plaintiff-Appellant, An additional consideration weighs against finding that Himmel has met the NATIONAL INDUSTRIAL jeopardy requirement for a GROUP Greeley claim. PLAN, pension PENSION an Erisa Namely, the federal statute upon which plan; Group National Industrial Pen founded, claim is LMRA sion Agency, Plan Administrative does contain not an explicit administrator, foreign corpora its ban on retaliation for reporting or com- tion, Defendants-Appellees. plaining about violations. This distin- Kulch, guishes this case from which found No. 01-2680. cause of action based on two United States Court of Appeals,
statutes, explicitly each of which prohibit- Sixth Circuit. ed by employers adverse actions against Argued: April 2003. employees report who violations. One was Decided and Sept. Filed: 2003. Occupational Safety Act, and Health which explicitly prohibits employer dis- against
crimination employees who report
violations, 660(c); § see 29 U.S.C. the oth- Kuykendall Himmel's about the prohibition 7. The latter cannot serve as the settlement were concerned more with a dis- case, basis for a claim in this as there pute about whether the settlement was allegation is no that Himmel proper, uncovering and not with facts regulatory or enforcement authorities. See that the necessarily concede 4113.52(A)(2); Kulch, § Ohio Rev.Code illegal. against to be This also cuts the con- N.E.2d at 315-16. clusion protect- that Himmel's accusation was ed under prong Greeley. the second See 5, supra. footnote