Chandler v. Dowell Schlumberger Inc.

• Decision Date: 21 January 1998
• Docket Number: No. 17,Docket No. 104864,17
• Citation: 572 N.W.2d 210,456 Mich. 395
• Parties: , 135 Lab.Cas. P 58,385, 13 IER Cases 1059 Joseph W. CHANDLER, Plaintiff-Appellant, v. DOWELL SCHLUMBERGER INCORPORATED, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 210

572 N.W.2d 210

456 Mich. 395, 135 Lab.Cas. P 58,385,

13 IER Cases 1059

Joseph W. CHANDLER, Plaintiff-Appellant, v. DOWELL SCHLUMBERGER INCORPORATED, Defendant-Appellee.

Docket No. 104864.

Calendar No. 17.

Supreme Court of Michigan.

Argued Nov. 6, 1997.

Decided Jan. 21, 1998.

Mathieu & Lee by James H. Mathieu, Midland, for Plaintiff-Appellant.

Barry B. George, P.C. by Barry B. George, Midland, for Defendant-Appellee.

Opinion

MARILYN J. KELLY, Justice.

We granted leave in this case to decide whether the Whistleblowers' Protection Act ¹ shields an employee who was discharged under the erroneous perception that he reported a violation of law. We conclude that the statute does not protect such an employee.

I

Defendant Dowell Schlumberger Incorporated (DSI) hired the plaintiff on June 4, 1989, as a field engineer trainee. It promoted him to field engineer on November 11, 1990.

On April 6, 1992, the Michigan Department of Transportation, acting on a tip, cited DSI for carrying hydrochloric acid in a trailer not properly certified to carry it. Over the next week, plaintiff's supervisor, Joseph Shurell, sought the identity of the person who had reported the violation to MDOT. On April 13, 1992, Shurell called plaintiff to his office, questioned him about who reported the violation, and fired him.

Plaintiff filed the present action under the Whistleblowers' Protection Act (WPA). In his complaint, he alleged that Shurell discharged him because Shurell believed that plaintiff had reported violations of the law to MDOT.

Among other things, the WPA makes it illegal for an employer to retaliate against an employee because the employee has reported a violation of the law.

When defendant moved to dismiss the case under MCR 2.116(C)(10), Midland Circuit Court Judge Paul J. Clulo granted the motion, holding that the WPA did not protect plaintiff. He later denied plaintiff's motion for reconsideration. Plaintiff then appealed to the Court of Appeals, which affirmed. 214 Mich.App. 111, 542 N.W.2d 310 (1995). We granted plaintiff's application for leave to appeal. 564 N.W.2d 45 (1997).

II

This Court is asked to review the trial court's grant of defendant's motion for summary disposition under MCR 2.116(C)(10). In deciding a motion under subrule (C)(10), the trial court views affidavits and other documentary evidence in the light most favorable to the nonmoving party. Shallal v. Catholic Social Services, 455 Mich. 604, 610, 566 N.W.2d 571 (1997). Our review is de novo. Groncki v. Detroit Edison Co., 453 Mich. 644, 649, 557 N.W.2d 289 (1996). See Weymers v. Khera, 454 Mich. 639, 563 N.W.2d 647 (1997).

III

A

Plaintiff sues under § 2 of the Whistleblowers' Protection Act. It provides:

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. [M.C.L. § 15.362; M.S.A. § 17.428(2).]

When construing a statute, we begin by recognizing that "[w]here the legislative intent is clearly expressed, it is entitled to the utmost respect." People v. Waterman, 137 Mich.App. 429, 432-433, 358 N.W.2d 602 (1984). We explained the process recently:

The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers' Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Shallal, supra at 611, 566 N.W.2d 571 (citations omitted).]

B

Plaintiff alleges that he was fired because DSI believed it was he who blew the whistle. Accordingly, plaintiff is a "perceived whistleblower" and points to an opinion of this Court providing protection under the Michigan Handicappers' Civil Rights Act ² to those who are "perceived to be handicapped." Sanchez v. Lagoudakis, 440 Mich. 496, 503, 486 N.W.2d 657 (1992). Plaintiff argues that, because the employer has undertaken the action the statute appears to forbid, firing an employee believed to have reported a violation, the act should punish the employer. Plaintiff's argument requires us to examine the Whistleblowers' Protection Act.

Recently, we recognized that a plaintiff must establish three elements to make a prima facie case under § 2 of the WPA. Shallal, supra at 610, 566 N.W.2d 571. The plaintiff must show that (1) he was engaged in protected activity as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between the protected activity and the discharge. Id.

"Protected activity" under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule; (2) being about to report such a violation to a public body; or (3) being asked by a public body to participate in an investigation. M.C.L. § 15.362; M.S.A. § 17.428(2). Plaintiff has not alleged that he reported a violation of the law to a public body or that he was about to report such a violation. Nor does plaintiff allege that he was requested to participate in a public investigation of any kind. In fact, plaintiff has made clear that he was not the person who reported the employer's violation to the MDOT.

The plain language of the statute does not protect plaintiff. The ordinary and generally accepted meaning of the words "reports," "about to report," and "requested by a public body to participate in an investigation" do not encompass plaintiff's actions in the present case. The words are clear and do not readily lend themselves to more than one interpretation. As we noted in Shallal, "the implication is that the language of the Whistleblowers' Protection Act intentionally reduces employee protection the more removed the employee is from reporting to a public body." Id. at 613, 566 N.W.2d 571 (citation omitted).

There is no sliding scale in the WPA based on the employer's intent. Regardless of the quantum of proof of the employer's ill will, the act requires an employee to prove he was engaged in protected activity. The statute does not provide that the more obvious the employer's bad behavior, the less the plaintiff is required to do. In fact, almost the opposite is true. This is evident from the requirement that an employee seeking protection under the "about to report" language of the act prove his intent by clear and convincing evidence. See M.C.L. § 15.363(4); M.S.A. § 17.428(3)(4). As we noted above, the statute reflects the intent of the Legislature that the further an employee is from reporting, the harder it is for an employee to prove a violation under the WPA.

C

Plaintiff points to this Court's opinion in Sanchez v. Lagoudakis, supra. In that case, the Court read language in the Michigan Handicappers' Civil Rights Act (MHCRA) similar to § 2 of the WPA to protect a person who was perceived to have a handicap. ³ However, plaintiff's comparison fails, because none of the factors that led the Court to interpret the MHCRA to protect one who is regarded as having a handicap demands the same result under the Whistleblowers' Protection Act.

First, the Michigan Civil Rights Commission, the agency charged with interpreting the meaning of the MHCRA on a daily basis, determined that the act protected one regarded as having a handicap. Id. at 503, 486 N.W.2d 657. Here, there is no claim that any state agency has determined that the statute should be read to protect "perceived whistleblowers."

Second, the Sanchez Court reviewed decisions from many other states, finding that "[c]ourts in other jurisdictions with discrimination laws similar to the act have consistently construed their statutes to protect persons perceived to be handicapped." Id. Here, there is no overwhelming support for the definitional change in other jurisdictions, as there was under the MHCRA. In the whistleblower context, "laws similar to the [WPA]" are sufficiently different definitionally to make comparison between them on this issue ineffective. In the handicappers' arena, the United States Supreme Court and many states determined that one regarded as having a handicap should be protected. Here, Michigan's WPA gives broader protection than do most other states, so there is little with which to compare it.

Plaintiff points to this Court's majority opinion in Shallal, supra, which analogized between qui tam actions under the False Claims Act ⁴ and the WPA. Plaintiff asserts that he would recover in a qui tam action under the False Claims Act. The argument fails. First, the analogy to the qui tam provisions was not necessary to the Court's opinion in Shallal. Second, the definition of protected activity under qui tam is very different from that under the WPA. Under the qui tam provision, one could engage in protected activity by simply observing the wrongful activity and confronting the wrongdoer. See Shallal, supra at 618, 566 N.W.2d 571. There is no corresponding "confrontation" protection under the WPA. Instead, to come under the protection of the statute, a worker must engage in protected activity. Because the definitions of the two statutes differ on this specific issue, the analogy fails.

Third and most importantly, the Court...