Opinion
341197
02-02-2023
CLEVELAND STEGALL, Plaintiff-Appellant, v. RESOURCE TECHNOLOGY CORPORATION, doing business as BRIGHTWING, and FCA US, LLC, Defendants-Appellees.
Oakland Circuit Court LC No. 2016-155043-CD
Before: JANSEN, P.J., GLEICHER, C.J., and BORRELLO, J.
ON REMAND
JANSEN, P.J.
This case returns to this Court on remand from our Supreme Court. Plaintiff filed this action asserting a claim under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and a claim that he was discharged in violation of public policy, in regard to his perception of an issue regarding asbestos insulation at his worksite. The trial court granted summary disposition to defendants, Resource Technology Corporation, doing business as Brightwing, and FCA US, LLC, under MCR 2.116(C)(10). In an unpublished opinion, a majority of this panel affirmed. Stegall v Resource Technology Corp, unpublished per curiam opinion of the Court of Appeals, issued September 24, 2019 (Docket No. 341197) (Stegall I), rev'd in part &remanded, lv den in part 976 N.W.2d 667 (Mich, 2022). Our Supreme Court has now reversed in part this Court's judgment and remanded for further consideration of plaintiff's public-policy claim. Stegall v Resource Technology Corp, 976 N.W.2d 667 (Mich, 2022) (Stegall II). On remand, this Court is directed to further consider "whether plaintiff has established a prima facie claim that he was discharged in violation of public policy, whether plaintiff's public-policy claim is nonetheless preempted by either state or federal law, and whether arguments that the claim has been preempted are preserved." Id. at 668. Our Supreme Court denied leave to appeal in all other respects. Id.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In Stegall I, the majority of this panel summarized the underling facts and procedural history of this case as follows:
In 2013, FCA employed information technology (IT) support persons at its Sterling Heights Assembly Plant (SHAP) on both first and second shift. FCA employed some IT support persons directly; others were hired through staffing agencies as contract workers. Plaintiff began working at SHAP through Brightwing, a staffing agency. In April 2016, plaintiff complained to his superiors about what he perceived to be an issue with asbestos insulation in one of his work areas in the plant. Plaintiff e-mailed photographs of the suspected problem area to his supervisor, and plaintiff's supervisor sent the photographs to the plant's health and safety manager. The safety manager consulted with an outside expert who determined that there was no asbestos issue.
Around May 2016, FCA formally announced that it was ending production of the Chrysler 200 sedan, and that the second shift at SHAP would be eliminated. In light of this announcement, on June 3, 2016, Rick Spondike, plaintiff's superior, sent an e-mail to human resources personnel at FCA indicating that on June 17, 2016, he planned to transfer two of plaintiff's coworkers to another FCA plant and that plaintiff would be released.
Following plaintiff's termination, Kerri Kacanowski, a manager at Brightwing, instructed plaintiff to update his resume and informed plaintiff that Brightwing would search for a new employment opportunity for him. Then, on July 6, 2016, plaintiff filed a discrimination complaint with the Michigan Occupational Safety and Health Administration (MiOSHA), naming defendants in the complaint. Subsequently, Brightwing sent plaintiff an "Offboarding Survey" on two separate occasions and Brightwing's 401(k) provider, Principal Bank, sent plaintiff a letter indicating that his "former employer" had closed his 401(k) account.
Plaintiff then commenced this lawsuit, alleging that FCA and Brightwing were his joint employers and that both employers violated the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. Plaintiff alleged that he was terminated because he was "about to report Defendants' violations of the law." Plaintiff, however, later withdrew his WPA claim against FCA. Plaintiff also alleged that both alleged employers violated public policy by discharging him. Ultimately, the trial court granted summary disposition under MCR 2.116(C)(10) in favor of both defendants and dismissing plaintiff's complaint in its entirety. This appeal followed. [Stegall I, unpub op at 1-2.]
On appeal, the majority of this panel rejected plaintiff's argument that the trial court had erred in granting summary disposition to defendants regarding the public-policy claim. Id. at 2. Plaintiff's public-policy claim asserted that defendants, his joint employers, had "wrongfully terminated him because of his failure or refusal to violate the law in the course of his employment at SHAP." Id. at 3. That is, plaintiff contended that "his complaint about potential problems with asbestos at the plant and his demand for safety equipment amounted to a 'refusal to violate a law' while he was at SHAP and that FCA and Brightwing terminated him as a result." Id. The majority disagreed because (1) "there is no Michigan caselaw extending the public policy exception to discharges in retaliation for internal reporting of alleged violations of the law" and (2) "there was no genuine issue of material fact to support that either FCA or Brightwing wrongfully terminated plaintiff in retaliation for his refusal to violate the law because there is no evidence that anyone actually violated any law or regulation." Id. Given its resolution of this issue, the majority determined that there was no need to address plaintiff's argument that the trial court had "erred in holding that his public policy claims were preempted by the WPA." Id. at 3 n 1.
The public-policy claim was based on plaintiff's internal reporting regarding the purported asbestos issue, not on the MiOSHA complaint. The MiOSHA complaint is pertinent only to the WPA claim against Brightwing. Plaintiff withdrew his WPA claim against FCA because FCA decided to end plaintiff's employment before he expressed any intention to file a MiOSHA complaint.
Next, the majority rejected plaintiff's argument that the trial court had erred by dismissing his WPA claim against Brightwing. Id. at 4. The majority stated it was undisputed that plaintiff engaged in protected activity under the WPA by filing a wrongful termination complaint with MiOSHA. Id. at 5. Also, given the letters sent to plaintiff, a reasonable jury could find that Brightwing terminated its relationship with plaintiff, which would amount to an adverse employment action. Id. But plaintiff had failed to establish a causal connection between his protected activity and the adverse employment action because more than a mere temporal relationship is required to establish a causal connection. Id. at 5.
Judge Gleicher dissented with respect to both the public-policy claim and the WPA claim. Id. at 1 (GLEICHER, J., dissenting). Judge Gleicher opined that the majority was incorrect to state that a public-policy claim may not proceed on the basis of internal reports, relying on Landin v Healthsource Saginaw, Inc, 305 Mich.App. 519; 854 N.W.2d 152 (2014). Stegall I, unpub op at 5 (GLEICHER, J., dissenting). Judge Gleicher further stated that it was irrelevant to plaintiff's publicpolicy claim whether a law was actually broken. Id. at 6. Moreover, Judge Gleicher believed that plaintiff set forth a prima facie case under a public-policy tort theory. Id. at 6-7. As for the WPA claim, Judge Gleicher cited Mickey v Zeidler Tool & Die Co, 516 F.3d 516, 525 (CA 6, 2008), and Taylor v Modern Engineering, Inc, 252 Mich.App. 655, 661; 653 N.W.2d 625 (2002), for the proposition that temporal proximity alone can suffice to establish causation in certain cases. Stegall I, unpub op at 7-8 (GLEICHER, J., dissenting).
Following the issuance of this panel's opinion affirming the grant of summary disposition to defendants, plaintiff filed an application for leave to appeal in our Supreme Court. On November 29, 2021, the Court entered an order directing that oral argument was to be held on the application and that the parties were to file supplemental briefs addressing whether this Court had erred in holding that defendants were entitled to summary disposition on the public-policy claim. Stegall v Resource Technology Corp, 508 Mich. 986 (2021). The parties filed supplemental briefs, and oral argument was held.
On July 15, 2022, the Supreme Court entered its order reversing in part this Court's judgment and remanding the case to this Court for further consideration of plaintiff's public-policy claim. Stegall II, 976 N.W.2d at 667. The Court stated that this Court had erred by holding that plaintiff's public-policy claim fails because the public-policy exception does not extend to discharges in retaliation for internal reporting of alleged violations of the law. In this case, plaintiff did not argue for an addition to the public-policy exceptions that are recognized in Suchodolski v Mich. Consol Gas Co, 412 Mich. 692; 316 N.W.2d 710 (1982). Instead, plaintiff grounds his claim on two of the well-recognized Suchodolski exceptions-that he was discharged both because he exercised a right conferred by well-established legislative enactment and because he failed or refused to violate the law. Suchodolski, 412 Mich. at 695696. It bears noting that these are two separate exceptions under Suchodolski. It is irrelevant to the former exception whether plaintiff reported an actual or alleged violation of the law; that plaintiff relies on the exercise of a right conferred by a well-established legislative enactment such as the Occupational Safety and Health Act (OSHA), 29 USC 651 et seq., is sufficient. The Court of Appeals majority erred by considering the requirements of the two Suchodolski exceptions together. [Stegall II, 976 N.W.2d at 667-668.]
Our Supreme Court further explained why it is improper to preclude a public-policy claim merely because it is asserted on the basis of only internal reports:
To the extent that the Court of Appeals majority held that a public-policy claim fails when only internal reports are made, the Court of Appeals has previously held that a plaintiff could support a public-policy claim on the basis of internal reporting. Landin v Healthsource Saginaw, Inc, 305 Mich.App. 519, 531-532; 854 N.W.2d 152 (2014). We see no reason why limiting public-policy claims to external reports would serve the welfare of the people of Michigan, especially where the Whistleblowers' Protection Act, MCL 15.361 et seq., might otherwise preempt claims that involve reports to public bodies. See MCL 15.362; Anzaldua v Neogen Corp, 292 Mich.App. 626, 631; 808 N.W.2d 804 (2011). In this case, plaintiff had a good-faith belief that there was a violation of asbestos regulations at his workplace and followed proper internal reporting procedures. His internal report was thus sufficient to state a public-policy claim. [Stegall II, 976 N.W.2d at 668.]
In a footnote of its order, the Court addressed a dissenting statement written by Justice Zahra and joined by Justice Viviano:
We do not take a position on whether there remains a genuine issue of material fact regarding plaintiff's public-policy claim, although we do note that some of the facts the dissent relies upon remain disputed. Because the Court of Appeals erred by concluding that internal reports could not support a public-policy claim and by conflating plaintiff's claims made under separate Suchodolski exceptions, we remand to the Court of Appeals for that court to consider the remaining issues in the first instance. However, the dissent forges ahead to prematurely reject plaintiff's claims. Specifically, the dissent relies on
Dudewicz v. Norris-Schmid, Inc, 443 Mich. 68; 503 N.W.2d 645 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich. 589, 594 n 2; 734 N.W.2d 514 (2007), to conclude that plaintiff's claims are preempted by the OSHA and the Michigan Occupational Safety and Health Act (MiOSHA), MCL 408.1001 et seq. This ignores the fact that these specific preemption arguments were raised for the very first time in this Court and were thus never addressed by the Court of Appeals. We also note that, in Suchodolski itself, this Court cited MiOSHA as a potential source of a right conferred by well-established legislative enactment. Suchodolski, 412 Mich. at 695 &n 2. It is unclear what impact Dudewicz has on MiOSHA preemption given this language in Suchodolski that specifically refers to MiOSHA in explaining the contours of this exception, and the dissent fails to note or address this tension. We continue to believe that these questions are more appropriately addressed by the Court of Appeals in the first instance. [Stegall II, 976 N.W.2d at 668 n 1.]
The Court's order then announced the following disposition:
We remand this case to the Court of Appeals for further consideration of whether plaintiff has established a prima facie claim that he was discharged in violation of public policy, whether plaintiff's public-policy claim is nonetheless preempted by either state or federal law, and whether arguments that the claim has been preempted are preserved. In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining questions presented should be reviewed by this Court. [Stegall II, 976 N.W.2d at 668 .]
Justice Cavanagh concurred in the remand of the case to this Court for further consideration of the public-policy claim but dissented from the denial of leave to appeal with respect to the WPA claim. Id. at 668-669 (Cavanagh, J., concurring in part and dissenting in part). Justice Zahra wrote a dissenting statement that was joined by Justice Viviano. Id. at 669-673 (Zahra, J., dissenting). Justice Zahra opined that plaintiff's public-policy claim was preempted by MiOSHA and/or OSHA and that the public-policy exceptions to at-will employment that plaintiff invoked under Suchodolski were inapplicable. Id. at 669. Justice Zahra would thus have denied leave to appeal. Id.
II. ANALYSIS
In general, an issue must have been raised in or decided by the trial court to be preserved for appeal. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227-228; 964 N.W.2d 809 (2020). The issue whether plaintiff's public-policy claim is preempted by OSHA or MiOSHA was not raised or decided below. As the Supreme Court majority noted, those preemption arguments- which defendants are asserting as essentially alternative grounds for affirmance-were raised for the first time in the Supreme Court. Stegall II, 976 N.W.2d at 668 n 1. Our Supreme Court has explained:
Michigan generally follows the "raise or waive" rule of appellate review. Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court. Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice, generally a failure to timely raise an issue waives review of that issue on appeal. [Walters v Nadell, 481 Mich. 377, 387; 751 N.W.2d 431 (2008) (quotation marks and citations omitted).]
This issue was not preserved for appellate review. However, "[t]his Court . . . has the power to consider an issue when necessary, even if unpreserved or not properly presented." Glasker-Davis, 333 Mich.App. at 228. "[T]his Court may overlook preservation requirements where failure to consider the issue would result in manifest injustice, if consideration of the issue is necessary to a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented." Steward v Panek, 251 Mich.App. 546, 554; 652 N.W.2d 232 (2002) (citations omitted). Thus, this Court may nonetheless consider the issue of whether plaintiff's public-policy claim is preempted by OSHA and MiOSHA.
In Suchodolski, 412 Mich. at 695, our Supreme Court recognized a public-policy exception to the general rule that an employment-at-will contract may be terminated by either party to the employment contract at any time for any or no reason. This public-policy exception is "based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable." Id. Our Supreme Court noted that "[m]ost often these proscriptions are found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty." Id. As examples of such explicit legislative statements, the Supreme Court referred to, inter alia, MiOSHA and the WPA. Id. at 695 n 2.
The Suchodolski Court then noted that "courts have also occasionally found sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharges." Id. at 695. Such a cause of action may be implied when "the alleged reason for the discharge of the employee was the failure or refusal to violate a law in the course of employment." Id. "In addition, the courts have found implied a prohibition on retaliatory discharges when the reason for a discharge was the employee's exercise of a right conferred by a well-established legislative enactment." Id. at 695-696. This latter type of implied cause of action has been recognized when there is an allegation of being discharged in retaliation for pursuing a worker's compensation claim. Id. at 696.
In Dudewicz, 443 Mich. at 79-80, our Supreme Court explained:
In those cases in which Michigan courts have sustained a public policy claim, the statutes involved did not specifically proscribe retaliatory discharge. Where the statutes involved did proscribe such discharges, however, Michigan courts have consistently denied a public policy claim.... A public policy claim is sustainable, then, only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue. [Emphasis added.]
The Dudewicz Court held that the WPA preempted the public-policy claim asserted in that case because the WPA contained a specific prohibition against retaliatory discharge. Id. at 78-80.
This Court has adhered to the preemption analysis of Dudewicz. See, e.g., Anzaldua, 292 Mich.App. at 631 ("The WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity."), citing Dudewicz, 443 Mich. at 70, 78-79; Kimmelman v Heather Downs Mgt Ltd, 278 Mich.App. 569, 573; 753 N.W.2d 265 (2008) ("[W]here there exists a statute explicitly proscribing a particular adverse employment action, that statute is the exclusive remedy, and no other 'public policy' claim for wrongful discharge can be maintained."), citing Dudewicz, 443 Mich. at 78-80.
MiOSHA and OSHA both prohibit retaliatory discharge and thus preempt plaintiff's public-policy claim. MiOSHA imposes multiple duties on employers, including a duty to "[f]urnish to each employee, employment and a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee." MCL 408.1011(a). MCL 408.1065(1) states:
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.
MCL 408.1065(2) provides:
An employee who believes that he or she was discharged or otherwise discriminated against by a person in violation of this section may file a complaint with the department of labor alleging the discrimination within 30 days after the violation occurs. Upon receipt of the complaint, the department of labor shall cause an investigation to be made as it considers appropriate. If, upon the investigation, the department determines that this section was violated, the department shall order all appropriate relief, including rehiring or reinstatement of an employee to his or her former position with back pay.
Similarly, OSHA provides that an employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." 29 USC 654(a)(1). An employer also is required by OSHA to "comply with occupational safety and health standards promulgated under this chapter." 29 USC 654(a)(2). And like MiOSHA, OSHA proscribes retaliatory discharge. In particular, 29 USC 660(c)(1) states:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.
And 29 USC 660(c)(2) provides:
Any employee who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within thirty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. If upon such investigation, the Secretary determines that the provisions of this subsection have been violated, he shall bring an action in any appropriate United States district court against such person. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.
Therefore, MiOSHA and OSHA both prohibit retaliatory discharge, and plaintiff's publicpolicy claim is preempted under Dudewicz .
In our Supreme Court, plaintiff suggested that there was not an adequate statutory remedy, given that the Secretary of Labor has discretion in deciding whether to bring an action under OSHA. It is true that the OSHA antiretaliation provision did not create a private cause of action for a discharged employee. Taylor v Brighton Corp, 616 F.2d 256, 264 (CA 6, 1980). But an assessment of the adequacy of a statutory remedy is not part of the preemption analysis under Dudewicz. Plaintiff relies on language in Pompey v Gen Motors Corp, 385 Mich. 537, 552 n 14; 189 N.W.2d 243 (1971), stating that a "statutory remedy is not deemed exclusive if such remedy is plainly inadequate," but our Supreme Court later explained in Lash v Traverse City, 479 Mich. 180, 192 n 19; 735 N.W.2d 628 (2007), that the statement in Pompey regarding adequacy was dictum and "that this principle, which has never since been cited in any majority opinion of this Court, appears inconsistent with subsequent caselaw." The Supreme Court in Lash cited caselaw issued after Pompey, including White v Chrysler Corp, 421 Mich. 192, 206; 364 N.W.2d 619 (1984), and noted that the Court in White had "refused to permit a tort remedy for violations of [MiOSHA] despite acknowledging that the statutory remedy was inadequate because it resulted 'in the undercompensation of many seriously injured workers.'" Lash, 479 Mich. at 192 n 19, quoting White, 421 Mich. at 206.
This Court's opinion in Ohlsen v DST Indus, Inc, 111 Mich.App. 580; 314 N.W.2d 699 (1981), further reinforces the conclusion that plaintiff's public-policy claim is preempted. In Ohlsen, this Court held that, when an employer discharges an employee because of the employee's exercise of a right afforded by MiOSHA, the remedy provided in the MiOSHA antiretaliation provision is exclusive. Id. at 584, citing Schwartz v Mich. Sugar Co, 106 Mich.App. 471; 308 N.W.2d 459 (1981). Because MiOSHA prohibits retaliatory discharges and provides an exclusive remedy, the plaintiff in Ohlsen could not pursue a common-law tort action regarding the alleged retaliatory discharge of him. Ohlsen, 111 Mich.App. at 584-586. Our Supreme Court in Dudewicz cited Ohlsen along with other caselaw as support for the holding in Dudewicz that "[a] public policy claim is sustainable . . . only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue." Dudewicz, 443 Mich. at 80.
In addressing Justice Zahra's preemption analysis, the Supreme Court majority in this case stated that, in Suchodolski, "this Court cited MiOSHA as a potential source of a right conferred by well-established legislative enactment." Stegall II, 976 N.W.2d at 668 n 1, citing Suchodolski, 412 Mich. at 695 &n 2. The Supreme Court majority in this case continued:
It is unclear what impact Dudewicz has on MiOSHA preemption given this language in Suchodolski that specifically refers to MiOSHA in explaining the contours of this exception, and the dissent fails to note or address this tension. We continue to believe that these questions are more appropriately addressed by the Court of Appeals in the first instance. [Stegall II, 976 N.W.2d at 668 n 1.]
Respectfully, we feel compelled to note that the Supreme Court majority in this case did not precisely describe the way in which the Suchodolski Court referred to MiOSHA. The Suchodolski Court referred to, inter alia, MiOSHA and the WPA as examples of explicit legislative statements prohibiting retaliatory discharge. Suchodolski, 412 Mich. at 695 n 2. The Suchodolski Court then went on to note that "courts have also occasionally found sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharges[,]" id. at 695, and that such an implied cause of action may exist when, inter alia, "the reason for a discharge was the employee's exercise of a right conferred by a well-established legislative enactment." Id. at 696. The Suchodolski Court did not, as the Supreme Court majority in this case seems to have suggested, refer to MiOSHA in the context of the "well-established legislative enactment" exception that may form the basis for an implied cause of action.
Notably, in Dudewicz, 443 Mich. at 79 &n 6, our Supreme Court accurately summarized the pertinent reasoning in Suchodolski, including the fact that the Suchodolski Court referred to, inter alia, both the WPA and MiOSHA as examples of explicit legislation restricting an employer's ability to terminate an employment-at-will contract. The Court in Dudewicz went on to hold that "[a] public policy claim is sustainable . . . only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue." Id. at 80. The Dudewicz Court concluded that, because the WPA contained a specific prohibition against retaliatory discharge, the public-policy claim in that case was preempted. Id. at 78-80. As explained earlier, the same reasoning applies in this case because OSHA and MiOSHA contain explicit prohibitions against retaliatory discharge. We do not discern any tension in the caselaw that would alter the preemption analysis or the conclusion that plaintiff's public-policy claim is preempted.
The Supreme Court majority in this case acknowledged that the WPA "might" preempt publicpolicy "claims that involve reports to public bodies." Stegall II, 976 N.W.2d at 668, citing MCL 15.362 and Anzaldua, 292 Mich.App. at 631. Given that the Suchodolski Court referred to the WPA and MiOSHA in exactly the same manner, i.e., as examples of explicit legislation prohibiting retaliatory discharge, it is unclear why the Supreme Court majority in this case says that it discerns "tension" between Suchodolski and Dudewicz with respect to MiOSHA preemption while noting no such tension with respect to WPA preemption. Stegall II, 976 N.W.2d at 688 n 1.
Accordingly, summary disposition in favor of defendants is appropriate because plaintiff's public-policy claim is preempted by OSHA and MiOSHA, and the trial court reached the correct result in granting summary disposition to defendants with respect to the public-policy claim. See Kyocera Corp v Hemlock Semiconductor, LLC, 313 Mich.App. 437, 449; 886 N.W.2d 445 (2015) ("We will affirm a trial court's decision on a motion for summary disposition if it reached the correct result, even if our reasoning differs.").
Based on this conclusion, we need not address whether plaintiff established a prima facie claim that he was discharged in violation of public policy.
Affirmed.
GLEICHER, C.J. (dissenting).
The Supreme Court remanded this case for our consideration of three questions: "whether plaintiff has established a prima facie claim that he was discharged in violation of public policy, whether plaintiff's public-policy claim is nonetheless preempted by either state or federal law, and whether arguments that the claim has been preempted are preserved." Stegall v Resource Technology Corp, __Mich __; 976 N.W.2d 667, 668 (2022) (Stegall II). The majority holds that plaintiff Cleveland Stegall's public-policy tort claim is preempted, despite that this argument was not preserved.
At its core, this case concerns a question the Supreme Court did not ask: whether the cause of action for public-policy tort described in Suchodolski v Mich. Consol Gas Co, 412 Mich. 692; 316 N.W.2d 710 (1982), has continuing vitality given the Supreme Court's subsequent decision in Dudewicz v Norris-Schmid, Inc, 443 Mich. 68; 503 N.W.2d 645 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich. 589, 594 n 2; 734 N.W.2d 514 (2007). My answer is that Dudewicz gravely wounded Suchodolski and has left a trail of confusion in its wake. But a fair reading of Dudewicz supports that Stegall's public-policy tort claim is not preempted.
Suchodolski formally recognized a common-law tort claim arising from the retaliatory discharge of an employee who reports unlawful activity. Dudewicz narrowed Suchodolski by eliminating public-policy tort claims where a statute prohibits retaliation. The majority opinion dovetails with some of the language in Dudewicz, but clashes with another portion. This case offers the Supreme Court an opportunity to clarify Dudewicz's contradictory strands and to fully restore Suchodolski's original holding. I write to explain why Stegall's retaliation claim should survive, and why my interpretation of Suchodolski should prevail.
I. PUBLIC-POLICY TORT CLAIMS AND PREEMPTION
In Suchodolski, 412 Mich. 692, the Supreme Court formally recognized a cause of action for wrongful discharge grounded in an employer's violation of a well-established public-policy. Public-policy tort claims rest on the non-controversial notion that employees who shine a light on law-breaking or insist on following legal rules should not lose their jobs for having done so. After all, an employee who refuses to engage in illegal conduct or reveals workplace illegality contributes to enforcement of the rule of law. Tort remedies in these cases include a full gamut of compensatory damages for back pay, front pay, mental distress, and attorney fees.
In Suchodolski, the Supreme Court explained that "some grounds for discharging an employee are so contrary to public policy as to be actionable." Id. at 695. Such grounds are "[m]ost often" located "in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty." Id. In a footnote to the sentence explaining that "explicit legislative statements" must underlie a public-policy tort claim, the Court offered these four specific examples of statutes meeting that description: "MCL 37.2701 . . . (Elliott-Larsen Civil Rights Act [ELCRA]); MCL 37.1602 . . . (Handicappers' Civil Rights Act [HCRA]); MCL 408.1065 . . . ([Michigan] Occupational Safety and Health Act [MiOSHA]); [and] MCL 15.362 . . . (The Whistleblowers' Protection Act [WPA])." All of these statutes contain anti-retaliation provisions. Id. n 2.
This act has since been renamed the Persons With Disabilities Civil Rights Act.
A decade after deciding Suchodolski, the Supreme Court muddied that case's contours and shrunk its applications, creating uncertainty about when a public-policy tort case is preempted by an anti-retaliation statute. In Dudewicz, 443 Mich. 68, the Supreme Court eliminated one of the four "explicit legislative statements" it had identified in Suchodolski as giving life to a publicpolicy tort claim-the WPA. Not content to confine itself to axing the WPA from Suchodolski's list, Dudewicz went even farther, narrowing the reach of all public-policy claims by announcing that "[a] public policy claim is sustainable . . . only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue." Id. at 80 (emphasis added). While Suchodolski decreed that a statute must supply the source of a public policy to sustain a public-policy tort claim, Dudewicz erased every statute prohibiting discharge in retaliation for the conduct at issue. Not only did Dudewicz fail to acknowledge that its language contradicted Suchodolski; it ignored that a decade earlier, it had included the WPA in its list of public-policy pronouncements potentially giving rise to a public-policy claim. And its reasoning for nixing public-policy claims when there is "a statutory prohibition against discharge in retaliation for the conduct at issue" was thin at best.
The plaintiff in Dudewicz alleged that he was fired because he refused to drop criminal assault charges against a co-employee, contrary to an order issued by his employer. Id. 71. He sued under the WPA and additionally pleaded a public-policy tort claim. The Supreme Court held that the employee's report of a co-employee's violation of the law coincided with "traditional notions of whistleblowing," id. at 75, despite that "[n]othing in the plaintiff's complaint alleged that the defendant-employer violated any law or that the plaintiff was fired for reporting the defendant's violation of law to a higher authority." Id. at 76. The Supreme Court rejected the plaintiff s public-policy tort claim, however, holding that it was "preempted by the application of the WPA." Id. at 78.
Why was the claim preempted by the WPA in 1993 despite that in 1982, the Court specifically identified the WPA as a source of a public-policy tort claim? The Court dodged that obvious question by limiting its preemption analysis to the statement that "[a]s a general rule, the remedies provided by statute for violation of a right having no common-law counterpart are exclusive, not cumulative." Id.
The Court's conclusion that the WPA is an "exclusive" remedy that automatically trumps a public-policy tort claim is problematic. The Legislature never designated the WPA as an exclusive or preemptive remedy. The Court's "general rule" of preemption does not withstand scrutiny, either.
As support for its "general rule" of preemption the Dudewicz Court cited Pompey v Gen Motors Corp, 385 Mich. 537; 189 N.W.2d 243 (1971). In Pompey, the Court stated that "where a new right is created or a new duty is imposed by statute, the remedy provided for enforcement of that right by the statute for its violation and nonperformance is exclusive." Id. at 552. But the Pompey Court hedged with the qualifier that "[i]n the absence of a pre-existent common-law remedy, the statutory remedy is not deemed exclusive if such remedy is plainly inadequate[.]" Id. at 553 n 14. A leading treatise further clarifies the Pompey/Dudewicz "general rule," explaining, "Courts presume a statute is consistent with the common law, and so a statute creating a new remedy or method to enforce a right which existed before is regarded as cumulative rather than exclusive of previous remedies." 2B Singer, Sutherland Statutes &Statutory Construction (7th ed), § 50:5, p 178. Only where a statute creates "a new right" and "provides the remedy to enforce that right" is the new remedy "not cumulative with other common law remedies." Id. at 178-179.
The remedy section of the WPA does not declare or even hint at its own exclusivity. That said, the WPA was indeed groundbreaking legislation. Michigan was "the first state to enact a statute affording protection to whistleblowers from discriminatory treatment by employers." Young, The Whistleblowers' Protection Act: A Look at the Statute and Proposed Modification, 46 Wayne L Rev 1691, 1691 (2000). The act "is unique in that it prohibits employers from firing or discriminating against any employee because he 'reports or is about to report' illegal conduct in the workplace." Id. But common-law rights protecting employees from retaliatory discharge and common-law remedies in the form of tort actions preexisted the WPA's 1981 enactment. Id. at 1693. See also Trombetta v Detroit, Toledo &Ironton R Co, 81 Mich.App. 489; 265 N.W.2d 385 (1978); Sventko v Kroger Co, 69 Mich.App. 644; 245 N.W.2d 151 (1976). The WPA expanded the rights and remedies recognized in those cases. Contrary to Dudewicz, the rights and remedies the WPA codified did have "common-law counterparts" and common-law roots.
The remedy section of the act provides:
(1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.
(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county where the alleged violation occurred, the county where the complainant resides, or the county where the person against whom the civil complaint is filed resides or has his or her principal place of business.
(3) As used in subsection (1), "damages" means damages for injury or loss caused by each violation of this act, including reasonable attorney fees.
(4) An employee shall show by clear and convincing evidence that he or she or a person acting on his or her behalf was about to report, verbally or in writing, a violation or a suspected violation of a law of this state, a political subdivision of this state, or the United States to a public body. [MCL 15.363.]
Because our courts have long recognized a common-law claim for whistleblowing, Dudewicz's apparent abrogation of common-law remedies for whistleblowing in favor of purely statutory ones also contradicts our state's constitution: "The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed." Const 1963, art 3, § 7. The Supreme Court has repeatedly reiterated this principle. See, e.g., Velez v Tuma, 492 Mich. 1, 11-12; 821 N.W.2d 432 (2012) (explaining that "[t]he common law remains in force until 'changed, amended or repealed"). Courts must "not lightly presume that the Legislature has abrogated the common law. Nor will we extend a statute by implication to abrogate established rules of common law." Id. Indeed, the Supreme Court declared in Velez, 492 Mich. at 11-12: "Rather, the Legislature should speak in no uncertain terms when it exercises its authority to modify the common law." (Quotation marks and citations omitted).
Common-law preservation existed in 1993, when the Supreme Court decided Dudewicz. See, e.g., Rusinek v Schultz, Snyder &Steele Lumber Co, 411 Mich. 502, 508; 309 N.W.2d 163 (1981) ("[T]he no-fault act must be construed as retaining the common-law action for loss of consortium. The common-law action for loss of consortium in Michigan is not expressly abolished by the language of § 3135. If this section abolishes this common-law right it must be found to do so by implication. There is nothing, however, in the language of the act or its legislative purposes that requires such a construction."). The Dudewicz Court simply ignored this principle. And the majority in this case entirely ignores the Pompey qualifier requiring that a public-policy tort analysis include an evaluation of whether the allegedly preemptive statutory remedy is adequate.
More recently, in Murphy v Inman, 509 Mich. 132, 157-158; N.W.2d (2022), the Supreme Court reiterated that common-law causes of action are not implicitly abrogated by enactments creating similar remedies. One of the questions presented in that case was whether the enactment of the Business Corporation Act, MCL 450.1101 et seq., "superseded and replaced the common law such that no common-law fiduciary duties exist independently of [MCL 450.1541a(1)]."
The statutory remedy for whistleblowing is not adequate for those who lose their jobs because they have blown the whistle only internally, because they are foreclosed from bringing a claim. See Manzo v Petrella, 261 Mich.App. 705; 683 N.W.2d 699 (2004).
The majority and the Supreme Court have determined that Stegall does not have a viable claim under the WPA. Given that Stegall cannot establish a WPA claim, I am at a loss to understand why, logically, his public-policy claim should be preempted. Rivera v SVRC Indus, Inc, 507 Mich. 962, 963; 959 N.W.2d 704 (2021) ("Because plaintiff has not demonstrated a question of fact that this conduct entitles her to recover under the WPA, her public-policy claim based on this conduct is not preempted by the WPA."). See also Anzaldua v Neogen Corp, 292 Mich.App. 626, 631; 808 N.W.2d 804 (2011) ("[I]f the WPA does not apply, it provides no remedy and there is no preemption."). The majority's application of Dudewicz overlooks that Stegall has no WPA against FCA, the only remaining defendant.
Aside from the WPA, Stegall has invoked OSHA and MiOSHA as support for his publicpolicy claim. The majority holds that these statutes, too, are preempted according to Dudewicz. But there is another way to look at Dudewicz that preserves Stegall's public-policy tort claim.
In his concurring opinion in McNeil v Charlevoix Co, 484 Mich. 69, 90 n 5; 772 N.W.2d 18 (2009), Justice Michael Cavanagh expressed that "the context of the [Dudewicz] opinion shows that the Court intended to limit the public-policy exception only in instances in which a legislative enactment both provides an anti-retaliation provision and also creates an exclusive remedy." (Emphasis added). Justice Cavanagh would interpret Dudewicz to mean that "where the WPA applies, the public-policy exception to the common-law at-will employment doctrine is preempted because the party was afforded relief by the WPA's exclusive statutory remedy." Id. Even so, Murphy, 509 Mich. at 145-146. The Court held that it did not, echoing Velez v Tuma, 492 Mich. 1, 11; 821 N.W.2d 432 (2012):
Respectfully, I disagree with Justice Cavanagh's view that the WPA is an "exclusive statutory remedy." The Legislature never designated it as such, and the words of the statute do not indicate that the Legislature intended to displace any existing common-law remedies for retaliatory discharge.
[T]he mere existence of a statute does not necessarily mean that the Legislature has exercised this authority. We presume that the Legislature knows of the existence of the common law when it acts. Therefore, we have stated that we will not lightly presume that the Legislature has abrogated the common law and that the Legislature should speak in no uncertain terms when it exercises its authority to modify the common law. [Murphy, 509 Mich. at 153. (cleaned up).]
This is the proper framework for evaluating whether a common-law cause of action has been preempted by a subsequent statutory enactment. Justice Cavanagh continued, "This reasoning does not suggest that a non-retaliation provision in a legislative enactment would, standing alone, preempt a public-policy claim if the legislative enactment either did not provide a remedy or if the remedy provided was not exclusive." Id.
Justice Cavanagh's interpretation of Dudewicz makes sense and is true to a fair reading of Suchodolski. But the majority and other panels of this Court have interpreted Dudewicz as barring public-policy tort claims whenever a relevant statute prohibits retaliation, regardless of whether the statute provides an adequate remedy. Not only does the majority decide that Stegall's WPA claim is preempted; the majority holds that because "MiOSHA and OSHA both prohibit retaliatory discharge," they, too, preempt Stegall's public-policy tort claim.
For further evidence that Justice Cavanagh's view has not been adopted, see Kimmelman v Heather Downs Mgt Ltd, 278 Mich.App. 569, 573; 753 N.W.2d 265 (2008), citing Dudewicz, 443 Mich. at 78-80, lv den 482 Mich. 989 (2008) ("[W]here there exists a statute explicitly proscribing a particular adverse employment action, that statute is the exclusive remedy, and no other 'public policy' claim for wrongful discharge can be maintained.").
The majority's holding squares with an interpretation of Dudewicz focusing only on whether a statute prohibits retaliation, but places no weight on the exclusivity or the sufficiency of the statutory remedy. As Justice Cavanagh pointed out, there is language in Dudewicz suggesting that its holding is not as broad as the majority proposes: "A public policy claim is sustainable . . . only where there also is not an applicable statutory prohibition against discharge in retaliation for the conduct at issue. As a result, because the WPA provides relief to Dudewicz for reporting his fellow employee's illegal activity, his public policy claim is not sustainable." Dudewicz, 443 Mich. at 80 (emphasis added). If the italicized language is relevant post-Dudewicz, the majority's preemption holding is surely wrong.
Although the federal OSHA prohibits retaliatory discharges of employees who report workplace safety violations, OSHA does not authorize private causes of action to redress retaliation. Taylor v Brighton Corp, 616 F.2d 256, 264 (CA 6, 1980). Suit must be brought by the Secretary of Labor. And the same is true under MiOSHA; the director of labor must bring the claim. MCL 408.1065. Neither statute claims to set forth an exclusive remedy, and neither affords a plaintiff like Stegall complete relief for a retaliatory termination. Because Stegall lacks an adequate remedy under these statutes, the majority incorrectly jettisons his public-policy tort claim.
As the majority would have it, the Suchodolski list of possible public-policy statements giving rise to a public-policy tort claim for retaliatory discharge is now reduced to two: the ELCRA, MCL 37.2701, and the Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1602. No caselaw addresses whether a public-policy tort claim premised on retaliation is preempted by these remaining statutes, but the majority's interpretation of Dudewicz compels the conclusion that it would be; both statutes contain anti-retaliation provisions. See MCL 37.2701(a) and MCL 37.1602(a). What then is left of Suchodolski and the public-policy tort cause of action? My research reveals only one published case in which a public-policy tort claim survived: Landin v Healthsource Saginaw, Inc, 305 Mich.App. 519; 854 N.W.2d 152 (2014). There, the claim hinged on MCL 333.20176a, in which "the Legislature clearly expressed a desire to further [public] policy by prohibiting retaliation against an employee who reports malpractice." Landin, 305 Mich.App. at 530. Landin survives Dudewicz because MCL 333.20176a, which prohibits retaliation for reporting malpractice, does not create any cause of action for an employee.
In answer to the question that the Supreme Court did not ask, Suchodolski hangs on only by a thread. The Supreme Court mortally wounded it in Dudewicz by reading exclusivity and preemption into the remedial civil rights statutes passed by our Legislature between 1976 and 1981.
Why should the Supreme Court breathe new life into Suchodolski? By providing a private cause of action, tort law permits the full compensation of injured people. Absent an expressed legislative intent to occupy a field, tort claims do not conflict with or frustrate agency efforts to enforce safety or civil rights statutes. Agencies such as OSHA and MiOSHA often lack the resources to pursue individual claims, thereby permitting safety violations and retaliation for reporting them to remain unchallenged and unredressed.
Wyeth v Levine, 555 U.S. 555; 129 S.Ct. 1187; 173 L.Ed.2d 51 (2009), is instructive. That case involved whether the federal Food, Drug, and Cosmetic Act (FDCA) preempted a state-law tort claim against a drug manufacturer. The United States Supreme Court held that it did not, in part because Congress did not explicitly preempt state-law tort actions: "If Congress thought statelaw suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA's 70-year history." Id. at 574. The Wyeth majority also took pains to elucidate the function of tort law in the drug regulation context; the Court's reasoning is just as applicable to private causes of action revealing workplace safety violations:
In keeping with Congress' decision not to pre-empt common-law tort suits, it appears that the [Food and Drug Administration (FDA)] traditionally regarded state law as a complementary form of drug regulation. The FDA has limited resources to monitor the 11,000 drugs on the market, and manufacturers have superior access to information about their drugs, especially in the postmarketing phase as new risks emerge. State tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly. They also serve a distinct compensatory function that may motivate injured persons to come forward with information. Failure-to-warn actions, in particular, lend force to the FDCA's premise that manufacturers, not the FDA, bear primary responsibility for their drug labeling at all times. Thus, the FDA long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation. [Id. at 578-579.]
This case reveals yet another reason for reconsidering Dudewicz. The WPA prohibits retaliation against employees who report or are "about to report . . . a violation or a suspected violation of a law or regulation . . . to a public body[.]" MCL 15.362. Here, Stegall repeatedly complained internally to his FCA supervisors about possible asbestos exposure. A reasonable jury could conclude that these internal complaints triggered the decision to terminate his employment, even absent Stegall's later threat to "go to OSHA." The WPA provides Stegall with no pathway to present this claim, see Chandler v Dowell Schlumberger Inc, 456 Mich. 395, 399; 572 N.W.2d 210 (1998), and yet according to the majority, it preempts it. By forbidding public-policy claims when a statute "prohibits discharge in retaliation for the conduct at issue," Dudewicz sweeps too broadly, foreclosing potentially meritorious actions such as this one and leaving Stegall without a remedy despite that a jury could find that suffered a retaliatory discharge in response to good-faith reports of a safety violation.
II. FCA'S PREEMPTION ARGUMENT WAS NOT PRESERVED
In general, to be preserved for appeal an issue must have been raised in or decided by the trial court. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227-228; 964 N.W.2d 809 (2020). FCA first argued that Stegall's public-policy tort claims were preempted by OSHA, 29 USC 651 et seq., and MiOSHA, MCL 408.1001 et seq., in the Supreme Court. Stegall II, 976 N.W.2d at 668 n 1. Whether Stegall's public-policy claim is preempted by OSHA or MiOSHA was not raised or decided by the circuit court.
Given this glaring lack of preservation, this Court's review of the preemption issue is inappropriate. Our Supreme Court has explained:
Michigan generally follows the "raise or waive" rule of appellate review.
Under our jurisprudence, a litigant must preserve an issue for appellate review by raising it in the trial court. Although this Court has inherent power to review an issue not raised in the trial court to prevent a miscarriage of justice, generally a failure to timely raise an issue waives review of that issue on appeal. [Walters v Nadell, 481 Mich. 377, 387; 751 N.W.2d 431 (2008) (quotation marks and citations omitted).]
It is particularly unfair to permit FCA to achieve an affirmed summary disposition judgment based on an argument not included in its summary-disposition motions, and which did not form any part of the circuit court's summary disposition decision. Indeed, the issue was not even raised on appeal in this Court. Although Stegall was allowed to address the issue in the Supreme Court, the lack of preservation warrants a conclusion that the unpreserved issue of preemption under OSHA and MiOSHA should not be considered. Were it not for the importance of the preemption question, I would stop there.
III. STEGALL'S PRIMA FACIE PUBLIC-POLICY TORT CASE
Stegall worked as an information and communication technology support specialist at defendant FCA's Sterling Heights Assembly Plant (SHAP). A staffing agency, defendant Resource Technology Corporation doing business as Brightwing, assigned Stegall to work at defendant FCA US, LLC. Two months after he reported possible asbestos contamination in his workplace and requested air quality testing and safety gear, FCA notified Brightwing that it planned to terminate Stegall's employment. I described the relevant facts in my dissenting opinion in Stegall v Resource Technology Corp, unpublished per curiam opinion of the Court of Appeals, issued September 24, 2019 (Docket No. 341197) (Stegall I), and repeat them here.
In April 2016, Stegall became concerned about possible exposure to asbestos dust when he and two colleagues were assigned to work in "the penthouse" of FCA's SHAP. During a meeting with two supervisors, Stegall complained that he and his two coworkers developed respiratory symptoms (coughing with bloody mucous and itchy, watery eyes) after working in the penthouse. On April 28, 2016, Stegall sent the following email to his immediate supervisor, Jim Scarpace, Scarpace's supervisor, Richard Spondike, first-shift IT supervisor Mitul Patel, and a coworker:
These are just three (3) IDF examples of what we have to contend with during the cleaning. This doesn't even include the paths or walkthroughs areas (air exchange, heating and ventilations areas) on getting to the IDFs, which have the same issues. Mind you, the pictures attached are not the worst offenders, but the ones we could immediately take shots of.
A lot of the pipes are damaged, material falling out above head, and dust/material around these areas.
We would like to be provided with the necessary personal protective equipment on handling these areas where asbestos pipes are exposed and damage [sic]. And some type of guarantee these items will protect our health.
These issues were brought up in the past[] because of sickness that has occurred amongst a few ICT workers cleaning IDFs within the upper TCF substations. We want to make sure our long term health isn't being affected by the dust/particles within these areas.
FYI: The picture of my shoes is from a 10-15 minute walk within these areas. It's that bad. [Emphasis added.]
Stegall attached photographs depicting overhead pipes and insulation. Some of the pipes display a "DANGER" warning stating, "CONTAINS ASBESTOS FIBERS AVOID CREATING DUST CANCER AND LUNG DISEASE HAZARD." Based on the readily visible warning combined with his respiratory symptoms and the dust collecting on his shoes, Stegall reached the logical conclusion that the penthouse might be contaminated with airborne asbestos.
Spondike forwarded Stegall's photos (without the accompanying text) to an employee health and safety manager, who in turn forwarded them to an outside consultant, John Pomroy. Based only on the photos, Pomroy opined that there was nothing to worry about; although there were asbestos-wrapped pipes in the penthouse, he explained, it appeared that only fiberglass-wrapped pipes were damaged. This information was not shared with Stegall. Instead, Spondike provided Stegall and his coworkers with respiratory masks to use when they worked in the penthouse. Stegall was informed that FCA would obtain air quality testing to verify the safety of that area.
After receiving the protective gear and the reassurance that testing had been ordered, Stegall went on vacation. When he returned on May 16, the masks were gone. Stegall asked for replacements, but none were provided. He was given no explanation for this. Shortly after Stegall's renewed request for reassurance about possible asbestos exposure, Spondike had decided to terminate Stegall's FCA employment effective June 17. FCA had decided to temporarily shut down production at the Sterling Heights site beginning in June. However, in February, Spondike had informed a representative of ZeroChaos, a staffing agency, that he wanted to retain Stegall; Spondike was aware of the impending shut down at the time of their conversation.3 Before his termination, Stegall had been advised by Spondike that if employment needs changed at SHAP, he would be transferred to a different plant. Stegall was never given any reason for his termination, and no documentary evidence of record explains why FCA released him from employment. Stegall was the only employee in his department whose employment ended. And Spondike admitted that FCA hired someone to replace Stegall.
During the week of June 13, Stegall asked Scarpace about the status of the air quality testing. Scarpace indicated that he had not yet seen it. In response to Stegall's persistent follow-up questioning, Scarpace stated that he did not know when the testing results would be available. At some time during that week, Stegall threatened to "go to OSHA." Stegall was officially released from employment with FCA on June 17. Stegall filed a discrimination complaint with MiOSHA and against Brightwing on July 6. Brightwing terminated him on August 3.
3 ZeroChaos offers "workforce solutions" to FCA, managing the process of hiring "supplemental" employees. Stegall was employed by an agency called Brightwing, which supplied his resume to ZeroChaos. ZeroChaos helped place Stegall at FCA.
[Stegall I, unpub op at 3-5 (GLEICHER, J., dissenting).]
To establish a prima facie case of unlawful retaliation, a plaintiff must show (1) that he engaged in a protected activity, (2) that this was known by defendant, (3) that defendant took an employment action adverse to plaintiff, and (4) that there was a causal connection between the protected activity and the adverse employment action. [Landin, 305 Mich.App. at 533.]
When a plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises. Debano-Griffin, 493 Mich. 167, 176; 828 N.W.2d 634 (2013). The employer must then offer a legitimate, non-retaliatory reason for the discharge. Id. A plaintiff's claim should be submitted to a jury if there is a material question whether the employer's proffered reason was a pretext for unlawful retaliation. Id.
As I stated my dissenting opinion in Stegall I, federal OSHA regulations express a public policy "protective of workers who complain or communicate concern about the possible presence of asbestos in a workplace. They envision that an employer will not retaliate when a worker seeks information or reassurance that a workplace is free from dangerous asbestos fibers. Whether a dangerous concentration of asbestos exists is irrelevant." Stegall I, unpub op at 6-7 (GLEICHER, J., dissenting).
I explained why I believe that Stegall set forth a prima facie case under a public-policy tort theory as follow:
His conduct was consistent with having exercised his right to an asbestos-free environment. Encouraging workers to report potential occupational health hazards without fear of discharge furthers the public policy of protecting lives and health, regardless of [whether] a dangerous level of asbestos actually is found. [Id. at 7.]
Given the public policies reflected in MiOSHA, OSHA, and their regulations, Stegall engaged in a protected activity when he complained and communicated concerns about possible exposure to asbestos in his workplace. That it was ultimately determined that there was no asbestos danger at the workplace does not alter the fact that he had a right to raise these concerns. Indeed, the Supreme Court majority stated: "In this case, plaintiff had a good-faith belief that there was a violation of asbestos regulations at his workplace and followed proper internal reporting procedures. His internal report was thus sufficient to state a public-policy claim." Stegall II, 976 N.W.2d at 668. FCA knew of Stegall's protected activity, given that he raised the concerns to FCA. There was unquestionably an adverse employment action, given that Stegall was discharged.
As for Brightwing, Stegall alleges that he was employed jointly by Brightwing and FCA. See Stegall I, unpub op at 3 (GLEICHER, J., dissenting) (noting that plaintiff "worked for both FCA and Brightwing, a staffing agency that provided [plaintiff] to FCA in 2013"). Moreover, Stegall later informed Brightwing directly of the asbestos issue, before Brightwing ended its employment relationship with him.
The only element of a prima facie case at issue here is causation. As I explained in connection with the analogous WPA claim, temporal proximity alone can indicate causation in some cases. See Stegall I, unpub op at 7-8 (GLEICHER, J., dissenting). Temporal proximity and additional circumstantial evidence support a reasonable inference of causation for the purpose of Stegall's public-policy claim, as reflected in the following chronology:
After receiving the protective gear and the reassurance that testing had been ordered, Stegall went on vacation. When he returned on May 16, the masks were gone. Stegall asked for replacements, but none were provided. He was given no explanation for this. Shortly after Stegall's renewed request for reassurance about possible asbestos exposure, Spondike had decided to terminate Stegall's FCA employment effective June 17. FCA had decided to temporarily shut down production at the Sterling Heights site beginning in June. However, in February, Spondike had informed a representative of ZeroChaos, a staffing agency, that he wanted to retain [plaintiff]; Spondike was aware of the impending shut down at the time of their conversation. Before his termination, Stegall had been advised by Spondike that if employment needs changed at SHAP, he would be transferred to a different plant. Stegall was never given any reason for his termination, and no documentary evidence of record explains why FCA released him from
employment. Stegall was the only employee in his department whose employment ended. And Spondike admitted that FCA hired someone to replace Stegall.
I noted that "ZeroChaos offers 'workforce solutions' to FCA, managing the process of hiring 'supplemental' employees. Stegall was employed by an agency called Brightwing, which supplied his resume to ZeroChaos. ZeroChaos helped place Stegall at FCA." Id. at 4 n 3.
During the week of June 13, Stegall asked [his immediate supervisor, Jim] Scarpace[,] about the status of the air quality testing. Scarpace indicated that he had not yet seen it. In response to [plaintiff's] persistent follow-up questioning, Scarpace stated that he did not know when the testing results would be available. At some time during that week, Stegall threatened to "go to OSHA." Stegall was officially released from employment with FCA on June 17. Stegall filed a discrimination complaint with MiOSHA and against Brightwing on July 6. Brightwing terminated him on August 3. [Id. at 4-5.]
I also noted that Stegall had an "entirely favorable" employment record with Brightwing and FCA, including "a letter of recommendation from a supervisor at FCA highly praising [plaintiff's] work and abilities ...." Id. at 8. Considering these strands of evidence together and viewing them in the light most favorable to Stegall, a genuine issue of material fact exists with respect to causation.
Thus, Stegall presented evidence establishing a genuine issue of material fact on all the elements of his prima facie claim. The Supreme Court did not directly instruct this Court on remand to consider whether Stegall presented a genuine issue of material fact related to whether FCA's purported nonretaliatory reason for discharging Stegall was pretextual. See Stegall II, 976 N.W.2d at 668 (directing this Court on remand to consider, among other things, "whether plaintiff has established a prima facie claim that he was discharged in violation of public policy," but not directing this Court to address the issue of pretext). Assuming that the Supreme Court's order implicitly directed us to consider pretext, I would hold that a genuine issue of material fact has been established. The purported nonretaliatory reason for discharging Stegall was that "FCA closed the entire plant when it eliminated the second shift." Stegall II, 976 N.W.2d at 671 (ZAHRA, J., dissenting). But as I noted before, before Stegall made his internal complaints about the asbestos issue, Spondike had conveyed that he wanted to retain Stegall, even though Spondike was at that point already aware of the impending shutdown. Stegall I, unpub op at 4 (GLEICHER, J., dissenting). Stegall was not given a reason for his termination, he was the only employee in his department to be let go, and Spondike admitted that FCA ultimately hired a replacement for him. Id. at 4-5. Viewing the evidence and reasonable inferences from it in the light most favorable to Stegall, a genuine issue of material fact exists regarding pretext. Accordingly, I would hold that he established a prima facie public-policy tort claim. But for Dudewicz, that claim should go to a jury.