Sexton v. Panel Processing, Inc.

• Decision Date: 09 May 2014
• Docket Number: No. 13–1604.,13–1604.
• Citation: 754 F.3d 332
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Brian SEXTON, Plaintiff–Appellant, v. PANEL PROCESSING, INC. and Panel Processing of Coldwater, Inc., Defendants–Appellees.

754 F.3d 332

Brian SEXTON, Plaintiff–Appellant,

v.PANEL PROCESSING, INC. and Panel Processing of Coldwater, Inc., Defendants–Appellees.

No. 13–1604.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 28, 2014.

Decided and Filed: May 9, 2014.

ARGUED: William A. Pfeifer, Isackson, Wallace & Pfeifer, P.C., Alpena, Michigan, for Appellant. Donald H. Scharg, Bodman PLC, Troy, Michigan, for Appellees. Stephen A. Silverman, United States Department of Labor, Washington, D.C., for Amicus Curiae. ON BRIEF: William A. Pfeifer, Isackson, Wallace & Pfeifer, P.C., Alpena, Michigan, for Appellant. Donald H. Scharg, Steven J. Fishman, David A. Malinowski, Bodman PLC, Troy, Michigan, for Appellees. Stephen A. Silverman, United States Department of Labor, Washington, D.C., for Amicus Curiae.

BEFORE: SUTTON, McKEAGUE and WHITE, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which McKEAGUE, J., concurred. WHITE, J. (pp. 342–52), delivered a separate dissenting opinion.

SUTTON, Circuit Judge.

The Employee Retirement Income Security Act prohibits an employer from retaliating against an employee "because he has given information or has testified or is about to testify in any inquiry or proceeding relating to [the Act]." 29 U.S.C. § 1140. When Brian Sexton made a one- time unsolicited complaint to his employer about alleged violations of the Act, did that amount to "giv[ing] information ... in any inquiry?" We think not and hence affirm.

I.

Panel Processing makes floor panels. Brian Sexton worked as a general manager in its facility in Coldwater, Michigan, and served as a trustee for the company's employee retirement plan. In 2011, Sexton and another trustee, Robert Karsten, campaigned on behalf of two employees running for the company's board of directors. The employees won the election, but the board refused to seat them on the ground that it would violate the company's bylaws, which limited the number of inside directors. At the same time, the board removed Sexton and Karsten as trustees of the retirement plan.

Two days later, Sexton emailed the chairman of the board:

I believe that your actions ... in refusing to seat [the employees] as directors of the company and removing Rob Karsten and me as Trustees of the [retirement plan] are violations of ERISA and the Michigan Corporations Business Act and other state and federal laws. I plan to bring these violations to the attention of the U.S. Department of Labor and Michigan Department of Licensing and Regulatory Affairs unless they are immediately remedied.

R. 9–13 at 2. Neither the chairman nor anyone else responded to the email, and Sexton took no further action. About six months later, the company fired Sexton from his job as a general manager.

Sexton sued the company in Michigan state court for violating the State's Whistleblower Protection Act and for breaching his employment contract. One might think that, when a Michigan plaintiff sues a Michigan defendant under Michigan law in a Michigan court, the case would stay there. But the company invoked complete preemption, a doctrine that converts state law claims "within the scope of [ERISA's] civil enforcement provisions" into federal claims. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 66, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Under this banner, the company recharacterized Sexton's state whistleblower claim as an ERISA claim. See 29 U.S.C. § 1140. It then removed the transfigured lawsuit to federal court.

Once in federal court, Sexton did not challenge the company's removal of the case or its use of complete preemption. Sexton and Panel Processing instead litigated the case as though Sexton had raised a claim under ERISA. The district court granted summary judgment to the company on this ERISA claim, and it declined supplemental jurisdiction over Sexton's breach-of-contract claim.

II.

On appeal, Sexton does not contest the district court's application of complete preemption to Sexton's claim or otherwise attempt to resurrect his claim under Michigan's Whistleblower Protection Act. Under our case law, true enough, the doctrine of complete preemption goes to the subject matter jurisdiction of the court. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 565 (6th Cir.2007) (en banc). But we are satisfied, just as the parties and the district court were satisfied, that the company properly invoked the doctrine here.

III.

Sexton (supported by the Secretary of Labor) instead takes aim at the district court's rejection of his claim under ERISA. The relevant law says in relevant part: "It shall be unlawful for any person to discharge, fine, suspend, expel, or discriminate against any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to [the Act]." 29 U.S.C. § 1140. Both parties take as a given (for now) that the company fired Sexton because of his email to the chairman of the board.

All matters of interpretation begin with text; some end there. The text of this provision takes us well down the way of ending this dispute. No one claims that Sexton sent the email in the context of a "proceeding." And no one claims that the email amounted to testimony—that he "testified" or was "about to testify" in an "inquiry" or "proceeding" by sending the email. That leaves the possibility that the email amounted to "giv[ing] information ... in any inquiry." We have no problem with the idea that, by sending the email, Sexton was "giv[ing] information." But, as Sexton and the Secretary concede, the statute demands not just the limitless "giv[ing]" of "information." It requires that the information be given in an "inquiry"—"any" inquiry, to be sure, but an inquiry all the same. "Inquiry" might mean an official investigation, as in "Earl Warren led an inquiry into the assassination of President Kennedy." Or it might mean a question or a request for information, as in "The advocate answered the judge's inquiry." See Bryan A. Garner, A Dictionary of Modern Legal Usage 317 (2d ed.1995). We need not decide whether § 1140 uses "inquiry" in the former sense, in the latter sense, or in both senses. Under either definition, no inquiry occurred. Sexton did not send the email in connection with an official investigation. And he did not send the email in response to a question or request for information. Even what we might call a nunc pro tunc theory of "giv[ing] information ... in any inquiry" would not aid Sexton. For even after he sent the email, no one asked him any questions about the subject of the email, and no investigation involving him ever occurred. As the text of the email confirms, this was nothing more than a complaint accompanied by a threat: Sexton demanded that the company change course and threatened action if it did not. The email neither asks nor answers a question. That is not "giv[ing] information ... in any inquiry."

This interpretation not only respects the meaning—indeed accounts for the broadest possible meaning—of these terms, but it also respects the different ways Congress has dealt with retaliation in the work place. Congress has enacted roughly forty anti-retaliation laws, see Jon O. Shimabukuro et al., Cong. Research Serv., R43045, Survey of Federal Whistleblower and Anti–Retaliation Laws (2013), and they tend to include two distinct types of prohibitions. The first protects employees who oppose, report or complain about unlawful practices. See, e.g., 29 U.S.C. § 218c(a) (Consumer Financial Protection Act) ("provided ... information relating to any violation"); id. § 215(a) (Fair Labor Standards Act) ("filed any complaint"); 42 U.S.C. § 2000e–3(a) (Title VII) ("opposed any ... unlawful employment practice"). The second protects employees who participate, testify or give information in inquiries, investigations, proceedings or hearings. See, e.g., 29 U.S.C. § 218c(a) (Patient Protection and Affordable Care Act) ("assisted or participated ... in ... a proceeding"); id. § 2615(b) (Family and Medical Leave Act) ("given ... any information in connection with any inquiry or proceeding"); 42 U.S.C. § 12203(a) (Americans with Disabilities Act) ("participated in any manner in an investigation, proceeding, or hearing").

Most anti-retaliation laws include both types of clauses. See, e.g., 6 U.S.C. § 1142(a) (National Transit Systems Security Act); 7 U.S.C. § 26 (Commodity Exchange Act); 15 U.S.C. § 78u–6(h)(1)(A) (Securities Exchange Act); id. § 2087(a) (Consumer Product Safety Act); 29 U.S.C. § 215(a) (Fair Labor Standards Act); id. § 218c(a) (Patient Protection and Affordable Care Act); id. § 623(d) (Age Discrimination in Employment Act); id. § 660(c)(1) (Occupational Safety and Health Act); id. § 2615(b) (Family and Medical Leave Act); 30 U.S.C. § 815(c) (Federal Mine Safety and Health Act); 42 U.S.C. § 12203(a) (Americans with Disabilities Act); 42 U.S.C. § 2000e–3(a) (Title VII); 49 U.S.C. § 31105(a) (Commercial Motor Vehicle Safety Act); id. § 60129(a) (Pipeline Safety Improvement Act). Many of these laws were in existence before 1974, when Congress enacted ERISA. See the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, and Title VII.

By contrast, a few laws include only the first type of clause, the sort that protects employees who report unlawful practices. See, e.g., 15 U.S.C. § 2651 (Asbestos Hazard Emergency Response Act); 46 U.S.C. § 80507(a) (International Safe Container Act). And a few laws include only the second type of clause, the sort that protects employees who participate in inquiries, proceedings or hearings. See, e.g., 33 U.S.C. § 948a (Longshore and Harbor Workers' Compensation Act); 42 U.S.C. § 7622(a) (Clean Air Act).

In enacting this provision of ERISA, Congress included only a clause protecting people who give information or testify in inquiries or proceedings. Unlike most of the other laws just cited, ERISA thus does not contain a clause protecting people who oppose, report or...