Terzano v. Wayne County

• Court: Court of Appeal of Michigan
• Writing for the Court: RICHARD ALLEN GRIFFIN
• Citation: Terzano v. Wayne County, 549 N.W.2d 606, 216 Mich.App. 522 (Mich. App. 1996)
• Decision Date: 10 May 1996
• Docket Number: Docket No. 171831
• Parties: , 11 IER Cases 1476 Michael A. TERZANO, Plaintiff-Appellee, v. WAYNE COUNTY and Daniel Kerber, jointly and severally, Defendants-Appellants.

Page 606

549 N.W.2d 606

216 Mich.App. 522, 11 IER Cases 1476

Michael A. TERZANO, Plaintiff-Appellee, v. WAYNE COUNTY and Daniel Kerber, jointly and severally Defendants-Appellants.

Docket No. 171831.

Court of Appeals of Michigan.

Submitted March 12, 1996, at Detroit.

Decided May 10, 1996, at 9:15 a.m.

Released for Publication June 20, 1996.

Steven Fellows, Southfield, for plaintiff.

Jennifer Granholm, Corporation Counsel, and Ellen E. Mason, Assistant Corporation Counsel, for defendants.

Before MURPHY, P.J., and RICHARD ALLEN GRIFFIN and POST, ^* JJ.

RICHARD ALLEN GRIFFIN, Judge.

In this whistleblower's case, defendants appeal by leave granted a judgment in plaintiff's favor entered following a jury trial. On appeal, defendants raise an issue regarding the breadth of § 2 of the Whistleblowers' Protection Act (WPA), M.C.L. § 15.362; M.S.A. § 17.428(2). We affirm and hold, inter alia, that an employee who reports third-party violations of law or suspected violations of law is protected by the WPA when the employee acts within the scope of employment and the reported violation or suspected violation affects the business of the employer.

I

Plaintiff is a licensed electrician who was hired on April 9, 1990, by defendant Wayne County to work as a maintenance electrician at the Detroit Metropolitan Airport in Romulus, Michigan. At the outset, plaintiff's job was primarily that of an electrician. However, shortly after plaintiff began working at the airport, his supervisor, Jerald Wisusik, assigned electrical inspection duties to plaintiff. Plaintiff testified that it was explained to him that the airport needed an electrical inspector because some of the tenants of the airport were doing substandard electrical work that was going uninspected.

In May 1990, Wisusik instructed plaintiff to order the stoppage of some construction work that was being performed without a license at a restaurant operating at the airport. While in the restaurant, plaintiff noticed that a high-wattage neon menu board was improperly wired. Plaintiff informed Wisusik that the improperly wired menu board was a potential fire hazard. When plaintiff and Wisusik returned to inspect the menu board, the electrical inspector for the City of Romulus, Joseph Watt, was at the restaurant. Plaintiff showed Watt the improper wiring. Watt ordered the restaurant to unplug the menu board.

Watt and plaintiff walked across the aisle to a hotel, where they observed a workman performing electrical work in a newly constructed bar. After learning that the worker did not have an electrician's license, Watt ordered the bar closed and all construction to temporarily cease. Both the restaurant and the bar were owned by the Host Company. Aside from the airlines, the Host Company was the largest tenant of the Detroit Metropolitan Airport.

Two days later, plaintiff and Wisusik were called into the office of the airport's operations director, defendant Daniel Kerber. During the meeting, defendant Kerber harshly reprimanded plaintiff for reporting the electrical violations to the City of Romulus inspector. According to plaintiff, Kerber said, "I don't want any small town electrical inspector harassing any of my tenants. They can do as they please in their own space." Kerber then ordered plaintiff to have no further contact with city inspectors. Approximately four months later, defendants terminated plaintiff's employment. Plaintiff's discharge occurred just two weeks before the end of his six-month probationary term.

Plaintiff brought this action, claiming that his discharge violated the WPA because his termination was causally related to his reporting of "violations and suspected violations" to the City of Romulus electrical inspector. At trial, plaintiff testified that county officials told him that his reporting of the violations to the Romulus inspector was a reason for his firing. Defendants, however, claimed that plaintiff's discharge was unrelated to the reporting. Defendants argued that plaintiff was terminated for failing to timely repair an electrical problem that affected air traffic and for being rude to an employee of Northwest Airlines. The jury found that plaintiff was discharged in violation of the WPA and awarded damages.

II

On appeal, defendants argue that the trial court abused its discretion in denying their motion for judgment notwithstanding the verdict (JNOV) because plaintiff allegedly failed to show either the first or third element of a prima facie violation of the WPA. We disagree. In reviewing the trial court's denial of JNOV, we examine the testimony and all legitimate inferences that may be drawn therefrom in the light most favorable to the nonmoving party. Matras v. Amoco Oil Co., 424 Mich. 675, 681-682, 385 N.W.2d 586 (1986); Howard v. Canteen Corp., 192 Mich.App. 427, 431, 481 N.W.2d 718 (1992). In Tyrna v. Adamo, Inc., 159 Mich.App. 592, 601, 407 N.W.2d 47 (1987), this Court held that in order to establish a prima facie case under the WPA the plaintiff must establish:

(1) that plaintiff was engaged in protected activities as defined by the act, (2) that plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge.

See also Chandler v. Dowell Schlumberger, Inc., 214 Mich.App. 111, 114, 542 N.W.2d 310 (1995); Hopkins v. City of Midland, 158 Mich.App. 361, 378, 404 N.W.2d 744 (1987). The determination whether the evidence established a prima facie case under the WPA is a question of law to be determined de novo. Dudewicz v. Norris Schmid, Inc., 192 Mich.App. 247, 254, 480 N.W.2d 612 (1991), aff'd in part and rev'd in part on different grounds, 443 Mich. 68, 503 N.W.2d 645 (1993).

The dispositive issue presented is whether the WPA protects employees who, while acting in the scope of employment, report third-party violations or suspected violations of law that directly affect their employer's business. See, e.g., Dudewicz, 443 Mich. at 74, 503 N.W.2d 645; People v. Weiss, 191 Mich.App. 553, 559, 479 N.W.2d 30 (1991). In addressing this question, we are mindful that "[t]he fundamental purpose of any rule of statutory construction, of course, is to assist the court in discovering and giving effect to the intent of the Legislature." In re Certified Question, 433 Mich. 710, 722, 449 N.W.2d 660 (1989). Further, "[i]t is thus equally axiomatic that 'the intention of the Legislature, when discovered, must prevail, any existing rule of construction to the contrary.' " Id., quoting Michigan Central R. Co. v. Michigan, 148 Mich. 151, 156, 111 N.W. 735 (1907). Finally, where reasonable minds can differ with regard to the meaning of a statute, the court should look to the objective of the statute and the harm it is designed to remedy and apply a reasonable construction that best accomplishes the purpose of the Legislature. Weiss, supra at 559, 479 N.W.2d 30.

Defendants contend that the WPA protects only those employees who report violations committed by either their employer or fellow employees. However, no such limitation exists in either the text of the WPA or its legislative history. Section 2 of the WPA 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).]

As our Supreme Court observed in Dudewicz, supra at 74-75, 503 N.W.2d 645:

A plain reading of this provision reveals that protection is not limited to employee reports of violations by employers. On its face, the provision only seems to apply to the discharge of an employee who "reports ... a violation or a suspected violation of a law...."

Accord Dudewicz, 192 Mich.App. at 255, 480 N.W.2d 612; Tyrna, supra at 599, 407 N.W.2d 47; Hopkins, supra at 377, 404 N.W.2d 744. The legislative analysis of the house bill that became the WPA is consistent with the Supreme Court's reading of the broadly worded statute. Although the legislative analysis emphasizes acts of misconduct committed by government or large businesses, the analysis found no express intention to limit the protection of the WPA to circumstances where the reported violation of law was committed by a particular entity. House Legislative Analysis, HB 5088, 5089 (February 5, 1981). Instead, the analysis envisions protection for employees who do their "civic duty" and "volunteer their assistance to law enforcement authorities." Id. Accordingly, when the text of the WPA is analyzed in conjunction with its legislative analysis, there is no express support for defendants' proposed limitation on the scope of the statute.

Nevertheless, defendants argue that our Supreme Court in Dudewicz, supra, limited the scope of the WPA to those situations where the reported violation pertains to the conduct of either an employer or fellow employees. We disagree. In Dudewicz, the Supreme Court held that the WPA protected an employee who reported a criminal assault by a fellow employee that occurred during working hours and arose out of a dispute over the proper handling of company business. Dudewicz, supra at 70, 503 N.W.2d 645. In reaching this conclusion, the Supreme Court addressed the defendant's contention that the WPA only protects employees who report violations committed by their employers. In rejecting this argument and holding the WPA to be applicable, the Supreme...