Tyrna v. Adamo, Inc.

• Court: Court of Appeal of Michigan
• Writing for the Court: SHEPHERD
• Citation: Tyrna v. Adamo, Inc., 407 N.W.2d 47, 159 Mich.App. 592 (Mich. App. 1987)
• Decision Date: 18 June 1987
• Docket Number: Docket No. 89668
• Parties: , 2 IER Cases 407, 1987 O.S.H.D. (CCH) P 27,969 Mary TYRNA, Plaintiff-Appellant, v. ADAMO, INC., Adamo Equipment Rental, Inc., Adamo Construction Company, Inc., Adamo Wrecking Company, Inc., John Adamo, Sr. and Paul Garavaglia, Defendants-Appellees.

Page 47

407 N.W.2d 47

159 Mich.App. 592, 2 IER Cases 407,

1987 O.S.H.D. (CCH) P 27,969

Mary TYRNA, Plaintiff-Appellant, v. ADAMO, INC., Adamo Equipment Rental, Inc., Adamo Construction Company, Inc., Adamo Wrecking Company, Inc., John Adamo, Sr. and Paul Garavaglia, Defendants-Appellees.

Docket No. 89668.

Court of Appeals of Michigan.

Submitted Nov. 19, 1986.

Decided April 21, 1987.

Released for Publication June 18, 1987.

Stark & Gordon by Brian B. Smith and Clark D. Cunningham, Detroit, for plaintiff-appellant.

Lakin, Worsham & Victor by Larry Farber, Southfield, for defendants-appellees.

Before SHEPHERD, P.J., and WAHLS and SULLIVAN, JJ.

SHEPHERD, Presiding Judge.

Plaintiff's complaint alleged that she was fired in retaliation for reporting various safety law violations, contrary to the protections provided by the Whistleblowers' Protection Act M.C.L. Sec. 15.361 et seq.; M.S.A. Sec. 17.428(1) et seq. The trial court granted summary disposition pursuant to MCR 2.116(C)(8), concluding that plaintiff's exclusive remedy was an administrative action for wrongful discharge under the Michigan Occupational Safety and Health Act (MIOSHA), M.C.L. Sec. 408.1001 et seq.; M.S.A. Sec. 17.50(1) et seq. We reverse and hold that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistleblowers' act notwithstanding the fact that the employer's wrongful conduct also violates MIOSHA.

We have examined the facts set forth in plaintiff's complaint. Plaintiff was hired on October 8, 1984, to implement an accounting system for defendant Adamo Inc., and its three subsidiaries: Adamo Equipment Rental, Inc., Adamo Construction Co., Inc., and Adamo Wrecking Company, Inc. She was hired by defendant John Adamo, Sr., president and co-owner of Adamo, Inc. Shortly after she began working, plaintiff developed a variety of health problems. At some point, a problem became evident in defendants' furnace, so that it would not shut off automatically and became very hot. Plaintiff could smell fumes in her work area which she determined came from the furnace. Plaintiff called the repair company which had recently repaired the furnace. The company refused to make further repairs, indicating that the furnace needed to be replaced. Another repair person stated that the furnace had a cracked block and was causing the fumes.

On February 26, 1985, plaintiff learned that her sister, who also worked for defendants in the same office, had been diagnosed as having carbon monoxide poisoning from breathing the furnace fumes. Plaintiff shut off the furnace and it remained off through February 27, 1985, while John Adamo was out of the office. When he returned on February 28, he apparently turned it on again and fumes were again present in plaintiff's work area. Plaintiff complained to Adamo, but he refused to shut the furnace off or replace it, insisting instead that it be left on to "take the chill out of here."

After working on March 4, 1985, plaintiff felt ill enough to visit the emergency room at Wyandotte General Hospital. Dr. Donald Reusink gave the following diagnosis and recommendation:

"Accute [sic] chemical (carbon monoxide) intoxication with cerebral dysfunction. Positively advised not to re-enter the confines of her present position of employment until there is documented proof that she will no longer be exposed to carbon monoxide fumes."

During late February and early March, 1985, plaintiff called the Dearborn Health Department to complain about the furnace. ¹ On March 5, 1985, a Dearborn Fire Marshal and a sanitarian from the Dearborn Health Department inspected defendants' premises. They found several problems with the furnace and concluded that the gas company should disconnect it until the furnace was repaired or replaced. The sanitarian shut off the furnace on March 6, 1985. The Dearborn Building and Safety Department subsequently inspected the furnace and issued a violation notice to defendants.

Plaintiff returned to work on March 18, 1985, after a new furnace had been installed. She submitted to John Adamo documentation of her medical expenses as a result of breathing carbon monoxide fumes. Plaintiff did not realize that, on the back of one sheet, she had written the names, numbers, and addresses of her doctor, the Dearborn Fire Marshal, and the Dearborn Health Department sanitarian. John Adamo fired plaintiff on March 21, 1985.

Plaintiff alleged that this was in retaliation for her report to the Dearborn Health Department. In addition to the whistleblowers' claim, plaintiff's complaint also contained a second count alleging defendants' violation of public policy in firing her for exercising her right to speak out freely in protection of herself and other citizens. Defendants contend on appeal that plaintiff was fired for an unsatisfactory job performance.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(8), alleging that plaintiff had failed to state a claim upon which relief could be granted. Defendants' supporting brief urged that plaintiff's only recourse was an administrative action under MIOSHA rather than the whistleblowers' act. In response, plaintiff stated that she was pursuing an administrative claim under MIOSHA, but was also entitled to pursue her whistleblowers' claim. The trial court granted summary disposition on October 26, 1985, finding that MIOSHA provided plaintiff with her exclusive remedy for alleged employment discrimination resulting from complaints under MIOSHA.

A motion for summary disposition under MCR 2.116(C)(8) tests the legal basis of the complaint, not whether it can be factually supported. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may be fairly drawn from them. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion should be denied. Sponkowski v. Ingham County Road Comm., 152 Mich.App. 123, 126-127, 393 N.W.2d 579 (1986).

The whistleblowers' act, M.C.L. Sec. 15.362; M.S.A. Sec. 17.428(2), 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."

MIOSHA provides for an extensive body of regulations governing safety in the work place. The MIOSHA provision relevant to this case is found at M.C.L. Sec. 408.1065(1); M.S.A. Sec. 17.50(65)(1):

"A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under or regulated by this act or has testified or is about to testify in such a proceeding or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act."

It appears that the trial court found MIOSHA to be plaintiff's exclusive remedy under the facts of this case. As a result, the court apparently concluded that the whistleblowers' act was unavailable to plaintiff and, thus, plaintiff's complaint failed to set out a claim upon which relief could be granted.

Defendants cite Ohlsen v. D S T Industries, Inc, 111 Mich.App. 580, 314 N.W.2d 699 (1981), to support the conclusion that MIOSHA provides plaintiff's exclusive remedy. In Ohlsen, the plaintiff claimed that his discharge was in retaliation for his protesting an unsafe place to work, a right afforded him under MIOSHA. The circuit court granted summary judgment for failure to state a claim, concluding that plaintiff had no right to bring a civil action since MIOSHA's provision for an administrative action provided the plaintiff's exclusive remedy. Finding no common-law right to refuse to work upon alleging an unsafe work place, this Court held that "the remedies provided in the MIOSHA statute are exclusive and not cumulative." 111 Mich.App. at 583, 314 N.W.2d 699.

We do not find Ohlsen determinative, however. The whistleblowers' act was not involved in that case, since the Ohlsen plaintiff was fired in 1977 and the whistleblowers' act did not become effective until 1981. The instant plaintiff is not seeking to enforce common-law rights, but statutory rights granted under a separate act. It is apparent that an overlap exists between the statutes and the protections they afford an employee. MIOSHA provides a remedy to an employee terminated in retaliation for filing a complaint or instituting a proceeding under MIOSHA. M.C.L. Sec. 408.1065; M.S.A. Sec. 17.50(65). The whistleblowers' act, on the other hand, provides a remedy to an employee terminated for reporting to any public body a violation of any law or regulation of this state, a political subdivision, or the United States. M.C.L. Sec. 15.362; M.S.A. Sec. 17.428(2).

MIOSHA relates to safety in the work place only. The whistleblowers' act relates to all laws and regulations. MIOSHA encourages reporting to MIOSHA officials. The whistleblowers' act encourages reporting to all agencies responsible for enforcement. In the instant case both ...