Dudewicz v. Norris Schmid, Inc.

• Court: Court of Appeal of Michigan
• Writing for the Court: HOLBROOK
• Citation: Dudewicz v. Norris Schmid, Inc., 480 N.W.2d 612, 192 Mich.App. 247 (Mich. App. 1991)
• Decision Date: 16 December 1991
• Docket Number: Docket No. 126212
• Parties: , 7 IER Cases 433 Michael L. DUDEWICZ, Plaintiff-Appellant, v. NORRIS SCHMID, INC., Defendant-Appellee.

Page 612

480 N.W.2d 612

192 Mich.App. 247, 7 IER Cases 433

Michael L. DUDEWICZ, Plaintiff-Appellant, v. NORRIS SCHMID, INC., Defendant-Appellee.

Docket No. 126212.

Court of Appeals of Michigan.

Submitted June 5, 1991, at Lansing.

Decided Dec. 16, 1991, at 9:35 a.m.

Released for Publication March 10, 1992.

Jensen, Smith & Clark, P.C. by Peter C. Jensen, Saginaw, for plaintiff-appellant.

Smith & Brooker, P.C. by Robert A. Jarema, Saginaw, for defendant-appellee.

Before CAVANAGH, P.J., and HOLBROOK and CYNAR, ^* JJ.

HOLBROOK, Judge.

In this wrongful-discharge case, plaintiff sought to be reinstated to his former position and to receive full back wages, including monthly bonuses, and attorney fees. On December 18, 1989, defendant's motion for partial summary disposition was granted with respect to the count that claimed plaintiff's discharge violated public policy. The parties then went to trial on plaintiff's claim that his discharge violated the Whistleblowers' Protection Act, M.C.L. Sec. 15.361 et seq.; M.S.A. Sec. 17.428(1) et seq. Following the close of plaintiff's proofs, the trial court granted defendant's motion for a directed verdict. The order granting this motion was entered January 5, 1990. Plaintiff now appeals as of right. We reverse.

Plaintiff was employed as a parts manager for defendant, an automobile dealership. Plaintiff testified that on November 4, 1987, he was manhandled when another employee, the service manager, reached over the counter and grabbed plaintiff by his shirt collar, breaking a gold chain and several buttons on plaintiff's shirt. That day, plaintiff informed defendant's new car sales manager about the incident. Plaintiff also filed criminal charges against the service manager with the Midland County Prosecutor, alleging assault and battery.

Plaintiff testified that on December 1, 1987, he was called to the office of Sam Norris, owner of defendant, and was told by Mr. Norris to drop the charges or be fired. Plaintiff was also told to leave the premises. Plaintiff left the premises believing that he had been fired but could regain his job if he decided to drop the charges against the service manager. Plaintiff then contacted an attorney, who told him to return to work. Plaintiff did so on December 3, 1987, but was told by Mr. Norris that he had quit and had to leave the premises or the police would be called. Plaintiff told Mr. Norris he had not quit and would leave only if given a statement of termination. The police were then called, and plaintiff was escorted from the premises.

Plaintiff first argues that it is a violation of public policy for an employer to fire an employee who files a criminal charge against a supervisor for an assault that occurred during the course of employment. We agree.

A motion for summary disposition under MCR 2.116(C)(8) should be reviewed to determine whether the claim is so clearly unenforceable that as a matter of law no factual development could possibly justify a right of recovery. Scameheorn v. Bucks, 167 Mich.App. 302, 306, 421 N.W.2d 918 (1988).

The day before trial, the trial court granted defendant's motion for partial summary disposition. A colloquy between the court and plaintiff's counsel indicates that plaintiff's attorney believed that the trial court was dismissing the "public policy" count on the basis that the Whistleblowers' Protection Act provided the exclusive remedy. Plaintiff's counsel moved for reconsideration on the basis that the public policy exception to an employer's right to discharge at will an employee not covered by contract provided a ground for relief separate from that provided by the act. The court declined to rule on the motion for reconsideration until after receiving proofs. Following plaintiff's proofs, the court denied plaintiff's motion for reconsideration and granted defendant's motion for a directed verdict on the basis that the Whistleblowers' Protection Act was not applicable to the case. The court stated that it had earlier dismissed the public policy count because it considered the public policy exception to discharge to be inapplicable to the instant case, not because it believed the Whistleblowers' Protection Act was the exclusive remedy.

The public policy exception to discharge in an employment at will situation was introduced in Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976), where the discharge of an employee in retaliation for filing a workers' compensation claim was found to be against public policy. In Suchodolski v. Michigan Consolidated Gas Co., 412 Mich. 692, 316 N.W.2d 710 (1982), the Supreme Court elaborated on this exception. The Suchodolski Court first recognized prohibitions against discharging employees who act in accordance with some explicitly granted statutory right or duties. The Court referred to four such statutes that granted explicit rights: the Civil Rights Act, the Handicappers' Civil Rights Act, the Occupational Safety and Health Act, and the Whistleblowers' Protection Act. Id., at p. 695, 316 N.W.2d 710.

The Court also recognized a "sufficient legislative expression of policy to imply a cause of action for wrongful termination, even in the absence of explicit prohibition on retalitatory discharges." Id. An implied cause of action for discharge exists in two situations: first, when a discharge occurs because an employee refuses to violate a law in the course of employment, and second, when "the reason for the discharge was the employee's exercise of a right conferred by a well-established legislative enactment. Id., at p. 696, 316 N.W.2d 710.

Defendant argues that plaintiff's statutory right to bring a criminal complaint against a fellow employee does not come within the Court's meaning of a "well-established legislative enactment." We strongly disagree. Defendant argues that there must be a nexus between the statute violated and the employment relationship and points to the four statutes enumerated in Suchodolski as examples of this type of statute. Defendant argues that the Sventko opinion required a nexus between the statute violated and the employment relationship. Our reading of that case, however, reveals no such requirement. The discussion by the Supreme Court in Suchodolski did note four statutes that gave explicit rights to employees. But the discussion went on to focus on implied causes of action, showing that the four statutes mentioned by the Court were not meant to be an exhaustive description of the public policy exception. In Suchodolski, the plaintiff sought to establish a public policy exception based on the regulation of the accounting system of public utilities. The Supreme Court rejected this claim on the basis that the statute regulating the accounting systems of utilities was not aimed at conferring rights on an employee. Suchodolski, supra, 412 Mich. at p. 696, 316 N.W.2d 710. Thus, the central requirement of the public policy exception is that there be an expressed legislative enactment that gives an employee an individual right, not that there be a direct nexus between the purpose of the statute and the employment relationship.

This view finds support in the case of Pratt v. Brown Machine Co., 855 F.2d 1225, 1237 (CA 6, 1988). In Pratt, the plaintiff was discharged for refusing to discontinue an investigation into harassing phone calls that he was receiving. The district court found a violation of public policy because the employer's action conflicted with Michigan's compounding and aiding and abetting statutes. In Pratt, supra, at p. 1236, the district court stated:

The public policy is the same, whether the underlying criminal offense is the maker [sic] of obscene phone calls or bank robbery or arson or any other crime. It matters not whether one of its employees or some other person is suspected of having committed the crime.

In affirming the decision of the lower court, the Sixth Circuit Court of Appeals stated that, for the public policy exception to exist, "[i]t is sufficient that the company requested the plaintiff to drop his investigation into criminal wrongdoing, and terminated him for his refusal to do so." Id., at p. 1237. This view is not contradictory to the language of existing case law and serves the purpose of the public policy exception. It serves " 'what is naturally and inherently just and right between man and man.' " Skutt v. Grand Rapids, 275 Mich. 258, 264, 266 N.W. 344 (1936), quoting Pittsburgh, C., C. & St. L. R. Co. v. Kinney, 95 Ohio St. 64, 115 N.E. 505, 507 (1916). To allow the discharge of an at-will employee because of a choice to file a criminal complaint against a fellow employee would force a choice between justice and livelihood. It is the public policy of this state to protect its citizens from such an onerous choice. The trial court's decision that the public policy exception did not apply to the instant case was erroneous, and the partial summary disposition for defendant is reversed.

Defendant correctly points out that plaintiff may have to choose the remedy of the Whistleblowers' Protection Act, rather than the remedy of the public policy exception to an employer's right to terminate an at-will employee, as the exclusive remedy available in this case. Covell v. Spengler, 141 Mich.App. 76, 83, 366 N.W.2d 76 (1985). However, the trial court expressly stated that it had not granted the motion for summary disposition on the basis that the Whistleblowers' Protection Act provides the exclusive remedy; therefore, the consideration of the applicability of the public policy exception to the facts of this...