Himmel v. Ford Motor Co.

• Citation: 342 F.3d 593
• Decision Date: 08 September 2003
• Docket Number: No. 01-4277.,01-4277.
• Parties: Stephen B. HIMMEL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

342 F.3d 593

Stephen B. HIMMEL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee.

No. 01-4277.

United States Court of Appeals, Sixth Circuit.

Argued: April 30, 2003.

Decided and Filed: September 8, 2003.

Petition for Rehearing Denied: January 8, 2004. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED:

Robert J. Hollingsworth, CORS & BASSETT, Cincinnati, Ohio, for Appellant. David G. Holcombe, BAKER & HOSTETLER, Cincinnati, Ohio, for Appellee.

ON BRIEF:

Robert J. Hollingsworth, Paul R. Moran, CORS & BASSETT, Cincinnati, Ohio, for Appellant.

David G. Holcombe (argued and briefed), Amy L. Garrard (briefed), Baker & Hostetler, Cincinnati, Ohio, for Defendant-Appellee.

Before: MOORE and ROGERS, Circuit Judges; KATZ, District Judge.^*

MOORE, J., delivered the opinion of the court, in which KATZ, D.J., joined. ROGERS, J. (pp. 602-606), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff-Appellant Stephen B. Himmel ("Himmel") appeals the district court's grant of summary judgment to Defendant-Appellee Ford Motor Company ("Ford"). Ford terminated Himmel's employment as the Supervisor of Labor Relations, Hourly Personnel, and Safety in October 1997. According to Himmel, prior to his termination, he had complained about the labor practices that violated Section 302 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 186, alleging: (1) Ford improperly agreed with the United Auto Workers ("UAW") that ten percent of its hires would be referrals from UAW officials; (2) Himmel was forced by Ford to hire a referral from the UAW's National Ford Department; and (3) Ford improperly settled two grievances with awards of back pay. Himmel filed suit against Ford, alleging that he was wrongfully terminated in retaliation for his complaints and that such termination violated the public policy of Ohio as expressed in Section 302 of the LMRA. The district court granted Ford's motion for summary judgment, reasoning that Himmel's discharge would not jeopardize Ohio public policy because Himmel had both participated in Ford's violations and committed his own independent violations of the LMRA. Himmel filed a timely notice of appeal.

Because the illegal conduct of an employee does not automatically bar his action for a wrongful discharge in violation of public policy under Ohio law, we REVERSE the district court's judgment and REMAND for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

Beginning in 1977, Himmel was employed at Ford's Sharonville, Ohio, transmission plant ("Sharonville"), first as a Labor Relations Specialist and then as Supervisor of Labor Relations, Hourly Personnel, and Safety. In his capacity as a supervisor, Himmel was responsible for all matters involving hourly workers. Because the UAW represented Ford's hourly personnel at Sharonville, Himmel served as Ford's representative to the Union and was responsible for the daily administration of the collective bargaining agreements between Ford and the UAW.

According to Himmel, during his tenure as a supervisor, he complained to Ford about Ford's improper favoritism to UAW officials. Specifically, Himmel maintains that he objected to three instances of Ford's alleged improper conduct: (1) Ford's agreement with the UAW that ten percent of its nationwide hiring would be referrals from UAW officials; (2) Ford's decision to hire Richard Forste ("Forste") after Himmel refused to give priority status to Forste as a referral from the UAW's National Ford Department; and (3) Ford's handling of the settlement of an employee grievance.

According to Himmel, Ford has long agreed that ten percent of its national hiring would be comprised of referrals from individual UAW officials. The UAW's National Ford Department gives referrals to Ford's World Headquarters, which in turn passes the reference along to individual plants. Ford forces its plants to give priority status to these referrals, according to Himmel, by refusing to support any plant that refuses to do so when that plant is the object of Union pressure. Himmel maintains that he complained about this ten-percent policy to his superiors on numerous occasions, although the content and time of these complaints is unclear.

In September 1996, Ford ordered Sharonville to hire a National Ford Department referral after Himmel had expressly declined to hire the referral and filled all available positions with other hires. When three journeyman electrician positions became available in June, Himmel opted to promote three qualified employees already working at Sharonville rather than to hire Forste, a National Ford Department referral. The National Ford Department informed Himmel that they considered his hiring decision "a slap in the face." Joint Appendix ("J.A.") at 135-36. Himmel had promoted the three Sharonville employees without first requiring their completion of a skilled-trades test, and the National Ford Department threatened to make pre-hiring testing an issue at Ford's upcoming national negotiations with the UAW unless Sharonville found a way to hire Forste. Although there were no open positions remaining at Sharonville, Ford's Powertrain Operations division decided to hire Forste.¹ Himmel complained to his Powertrain Operations supervisors about the forced hire and filed a written complaint with Ford's Office of General Counsel.² In spite of Himmel's complaints, Ford ordered Sharonville to hire Forste, and Himmel complied with the order.

While Ford was deciding whether to hire Forste, two journeymen electricians at a nearby Ford plant asked to be transferred to Sharonville plant. The electricians, Frank Kuykendall ("Kuykendall") and Ruth Jackson ("Jackson") filed grievances against Ford through the UAW in October 1996. According to Kuykendall and Jackson, the collective bargaining agreements between Ford and the UAW required Sharonville to prefer Ford employees over non-Ford employees applying for an open electrician position. Jackson also filed a grievance against Ford and the UAW with the National Labor Relations Board ("NLRB") in December 1996. When Ford finally transferred Kuykendall and Jackson to Sharonville in February 1997, they continued to dispute the issue of back pay. In June 1997, Ford agreed to pay both Kuykendall and Jackson for 420 hours of back pay, the number of hours that Forste had worked between the date of his hire and the day before Kuykendall and Jackson were transferred to Sharonville.

Himmel alleges that, upon learning of the settlement, he immediately complained to his boss that "it `stinks' and is `illegal.'" J.A. at 176 (Himmel Aff.). Moreover, a few weeks later, Himmel informed a Powertrain Operations official that the settlement violated "federal law" when she telephoned him to ask whether he had issued the settlement payment. According to Himmel, Ford had agreed prior to the settlement that only Jackson, the more senior employee who would have received Forste's position, had standing to grieve Ford's decision to hire a non-Ford-employee applicant at Sharonville. According to Himmel, Kuykendall was not entitled to a remedy, and likely received one only because he was married to the niece of the National Ford Department official who negotiated the settlement. Moreover, Himmel maintained that under the terms of the labor contract the back pay award should have extended back only to the UAW's latest refusal of Ford's settlement offer, not to Forste's start date.

A few days after Himmel initially complained about the impropriety of the Kuykendall settlement, Ford began investigating Himmel to determine whether he had improperly promoted UAW collective bargaining representatives.³ According to Ford, it concluded that Himmel had committed seven separate violations of Ford policy which could have subjected Ford to criminal and/or civil liability. Ford decided that discharge was the appropriate penalty and terminated Himmel's employment in October 1997.

Himmel filed an action against Ford in October 1999, alleging a single count of wrongful discharge based on Ohio's public policy exception to the employment-at-will doctrine. Himmel argues that Ford's asserted grounds for his discharge were pretextual and maintains that the promotions he gave were legitimate and previously approved by Ford labor officials. According to Himmel, Ford actually terminated him in retaliation for his complaints about Ford's conduct in violation of Section 302 of the LMRA, which prohibits employers and their agents from providing "any ... thing of value" to a union or union official. 29 U.S.C. § 186(a). Himmel maintains that Ford's violations implicated Ohio public policy and therefore permitted his wrongful discharge action.

The district court granted Ford's motion for summary judgment, concluding that Himmel's recovery for wrongful discharge was barred by Himmel's participation in Ford's violations of Section 302 and by his own violations of Section 302. Himmel filed a timely notice of appeal.

II. ANALYSIS

A. Standard of Review

We review the district court's grant of summary judgment de novo. Equitable Life Assurance Soc'y of the U.S. v. Poe, 143 F.3d 1013, 1015 (6th Cir.1998). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). A dispute over a material fact is not considered "genuine" unless "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quotation omitted). In deciding whether summary judgment was appropriate, we view all evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

In...