Sventko v. Kroger Co.

• Citation: 69 Mich.App. 644,245 N.W.2d 151
• Decision Date: 24 June 1976
• Docket Number: Docket No. 25227
• Parties: , 115 L.R.R.M. (BNA) 4613 Donna SVENTKO, Plaintiff-Appellant, v. The KROGER COMPANY, an Ohio Corporation, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

Page 151

245 N.W.2d 151

69 Mich.App. 644, 115 L.R.R.M. (BNA) 4613

Donna SVENTKO, Plaintiff-Appellant, v. The KROGER COMPANY, an Ohio Corporation, Defendant-Appellee.

Docket No. 25227.

Court of Appeals of Michigan.

June 24, 1976.

Released for Publication Sept. 14, 1976.

Rensberry & Foster, by Richard G. Bensinger, Gaylord, for plaintiff-appellant.

Jennings, Turkelson & Crawford, by William P. Jennings, West Branch, for defendant-appellee.

Before DANHOF, C.J., and D. E. HOLBROOK and ALLEN, JJ.

D. E. HOLBROOK, Judge.

On December 9, 1974, plaintiff filed a complaint against defendant company alleging that she had been wrongfully discharged from her employment with defendant. The complaint alleged that plaintiff had suffered a disabling injury while in defendant's employ on May 14, 1973; that on July 24, 1973, plaintiff filed a workmen's compensation claim; that plaintiff was treated for her disability between May 18 and November 27, 1973; and that on November 13, 1973, plaintiff was notified that she would not be allowed to return to her job or any other job with the defendant as her employment had been terminated.

Plaintiff alleged that her employment with defendant had been terminated as retaliation for her filing a workmen's compensation claim. Defendant filed a motion for summary judgment which was granted by the trial court in a written opinion. The trial court essentially found that plaintiff was an 'employee at will' and, as such, could be discharged for any reason or for no reason at all. Further, the trial court held that, since there was a provision in the workmen's compensation statute prohibiting 'consistent discharges', but no similar provision prohibiting discharges in retaliation for the filing of compensation claims, that the Legislature did not intend to prohibit such retaliatory discharges, nor could it be said that the public policy of the state prohibits them.

The decision below should be reversed. It is apparently true that the employment relationship present in this case was an employment at will. And, while it is generally true that either party may terminate an employment at will for any reason or for no reason, that rule is not absolute. ¹ It is too well-settled to require citation that an employer at will may not suddenly terminate the employment of persons because of their sex, race, or religion. Likewise, the better view is that an employer at will is not free to discharge an employee when the reason for the discharge is an intention on the part of the employer to contravene the public policy of this state. That the workmen's compensation statute does not directly prohibit a retaliatory discharge by employers does not hinder this opinion. Writing for three members of the Court in Whetro v. Awkerman, 383 Mich. 235, 242, 174 N.W.2d 783, 785 (1970), Justice T. G. Kavanagh said:

'The purpose of the compensation act as set forth in its title, is to promote the welfare of the people of Michigan relating to the liability of employers for injuries or death sustained by their employees. The legislative policy is to provide financial and medical benefits to the victims of work-connected injuries in an efficient, dignified and certain form.'

Discouraging the fulfillment of this legislative policy by use of the most powerful weapon at the disposal of the employer, termination of employment, is obviously against the public policy of our state. Justice T. E. Brennan, dissenting in Whetro, supra, said at 249, 174 N.W.2d at 787:

'The function of the workmen's compensation act is to place the financial burden of industrial injuries upon the industries themselves, and spread that cost ultimately among the consumers.

'This humane legislation was developed because the industrialization of our civilization had left in its wake a trail of broken bodies.

'Employers were absolved from general liability for negligence, in exchange for the imposition of more certain liability under the act.'

The trail of broken bodies endures and increases with time. Employers who find themselves located on that trail are eager to take advantage of the freedom from general liability provided by the act. An employer cannot accept that benefit for himself and yet attempt to prevent the application of the act to the work-related injuries of his employees without acting in direct contravention of public policy. This Court cannot tolerate such conduct. People ex rel. Attorney General v. Koscot Interplanetary, Inc., 37 Mich.App. 447, 195 N.W.2d 43 (1972).

The Legislature had seen fit to make it a crime for an employer to consistently discharge employees before they qualify under the act in order to evade the provisions of the act. M.C.L.A. § 418.125; M.S.A. § 17.237(125). The Legislature has not made retaliatory discharges of the type alleged in this case a subject of any criminal sanction. This is certainly no indication on the part of the Legislature that the latter conduct is consistent with public policy.

For purpose of considering defendant's motion for summary judgment below, the trial court was bound to accept as true all of plaintiff's factual allegations as well as any conclusions which could reasonably be drawn therefrom. GCR 1963, 117.2(1). Szydlowski v. General Motors Corp., 59 Mich.App. 180, 229 N.W.2d 365 (1975). Therefore, the court below was found to accept as true plaintiff's allegation that she was discharged by defendant solely in retaliation against her filing of a lawful claim for workmen's compensation. The court nevertheless found that plaintiff's case presented no exception to the common law right of the employer to discharge an employee at will for any reason or for no reason at all. As the court below was in error in so finding, the ruling should be reversed and the case remanded for proceedings consistent with this opinion, same to be heard on the merits.

Reversed and remanded. Costs to plaintiff.

ALLEN, Judge (concurring).

I agree with the result reached by Judge Holbrook but believe some additional comments may be helpful in this case of first impression. ¹ Although the complaint alleges that plaintiff's discharge 'was caused Solely by the filing of plaintiff's lawful claim for Workmen's Compensation' the facts set forth in the bill disclose an equally plausible and legitimate reason for terminating the at-will employment relationship, Viz.: that defendant was apprehensive that upon re-employment, plaintiff would sustain an aggravation or reoccurrence of the original low back injury. Given the high cost of workmen's compensation insurance in Michigan and the high rate of reoccurrence of lumbar injuries, this alternate explanation of plaintiff's discharge is at least as plausible as the one alleged by the complaint. ²

However, for purposes of reviewing the validity of a summary judgment, we must accept as true not only the factual allegations made in the complaint but the conclusion, if reasonable drawn, stated in the complaint. In other words, we must accept as true the allegation that discharge was Solely because plaintiff filed a compensation claim even though an equally valid and legitimate conclusion could be inferred from the facts recited.

Accordingly, this case should be remanded for a trial at which time the employer's reasons for plaintiff's discharge may be considered along with the allegations made by plaintiff. Potentially, our decision in this case opens the door to abuse by allowing spurious allegations of discharge solely because of the filing of a claim and a trial where the jury sympathies will lie in favor of plaintiff. But much of the abuse may be avoided if, at the time of discharge, the employer sets forth reasons clearly establishing that no attempt was made to dissuade the injured employee from filing a claim and that the reasons for not returning the employee to work were in no way retaliatory.

As Judge Holbrook has indicated, the absoluteness of the rule that an employee at will may be discharged for any reason whatsoever has increasingly been circumscribed by the emerging theory that the right of arbitrary discharge is limited when the discharge contravenes a statute or is contrary to public policy. Petermann v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, 174 Cal.App.2d 184, 344 P.2d 25 (1959) (plaintiff discharged because of his refusal to commit perjury at the employer's request. Held that discharge would be contrary to the spirit of the law and public policy); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974) (jury verdict for female employee at will sustained where discharge occurred because employee resisted foreman's sexual advances); Nees v. Hocks, Or., 536 P.2d 512 (1975) (judgment in favor of employee, discharged solely because she went on jury duty contrary to company policy, sustained); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973) (judgment in favor of employee alleged to have been discharged because she filed a claim against the employer for workmen's compensation benefits). Appellate courts have approached the new doctrine on tiptoes, declining to apply it in corporate management disputes or in other situations where no clear mandate of public policy is involved. ³ The case before us does not, as in...