In Covell, the court held that, because no common law action existed for reporting an employer's violation of law, the state whistleblower statute that permitted such a claim was the exclusive remedy.Summary of this case from Doe v. Morey Charter Schools
Docket No. 75868.
Decided February 20, 1985. Leave to appeal applied for.
Michael J. Breczinski, for plaintiff. Reid, Reid, Perry, Lasky, Hollander Chalmers, P.C. (by Patrick R. Hogan), for defendants.
Plaintiff appeals from the trial court's grant of accelerated and summary judgments in favor of defendants. GCR 1963, 116.1(5), 117.2(1). We affirm.
This case arises from the termination of plaintiff's employment with Kwik Car Wash, Inc. Plaintiff alleges that he was suspended from work on October 8, 1982, because of an argument with defendant Wasson. According to plaintiff, he then went to the labor board and complained that he was not receiving overtime pay. Plaintiff contends that when he reported to the car wash on October 12, 1982, to find out when he was to return to work, Wasson told him that "they didn't like people that went to the labor board" and that he was "laid off for lack of work since they couldn't fire" him. Defendants dispute this version of events, claiming that plaintiff was discharged on October 8, 1982, for poor attitude and inadequate work performance, reasons unrelated to any subsequent report he made to the labor board.
The basis for Count I of plaintiff's complaint is the Whistleblowers' Protection Act, MCL 15.361 et seq.; MSA 17.428(1) et seq. The trial court found that this claim was barred because plaintiff failed to initiate this action within the 90-day limitation period set forth in MCL 15.363(1); MSA 17.428(3)(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."
On appeal, plaintiff does not claim that he filed within the statutory limitation period. Rather, he claims that the 90-day limitation period should be construed as permissive and not mandatory, that is, "that one is allowed to start such action within 90 days of the occurrence complained of and is not prohibited from starting suit thereafter". We find this argument without merit. Plaintiff's construction renders the 90-day limitation period meaningless.
Plaintiff also contends that if the statute is to be construed as a statute of limitations it only bars the two forms of relief specified in that provision, injunctive relief and actual damages, and does not bar an action for the other remedies enumerated in MCL 15.364; MSA 17.428(4). MCL 15.364; MSA 17.428(4) provides:
"A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees, if the court determines that the award is appropriate."
To adopt plaintiff's construction would lead to an absurd result, which this Court is bound to avoid. Lamphere Schools v Lamphere Federation of Teachers, 400 Mich. 104, 114, n 4; 252 N.W.2d 818 (1977). Our Supreme Court has stated the rule:
"The fundamental rule of construction of statutes is to ascertain and give effect to the intention of the Legislature; courts are bound, whenever possible, so to construe statutes as to give them validity and a reasonable construction; seeming inconsistencies in the various provisions of a statute should be reconciled, if possible, so as to arrive at a meaning which gives effect to all parts of the statute; a construction leading to an absurd consequence should be avoided." In re Petition of State Highway Comm, 383 Mich. 709, 714-715; 178 N.W.2d 923 (1970) (Citations omitted.)
"As used in subsection (1), `damages' means damages for injury or loss caused by each violation of this act, including reasonable attorney fees."
A logical construction would be that the Legislature intended the 90-day limitation period to apply to claims for all damages. The language "appropriate injunctive relief", as used in MCL 15.363(1); MSA 17.428(3)(1), is sufficiently broad and encompasses the specific forms of injunctive relief set forth in MCL 15.364; MSA 17.428(4).
We hold that MCL 15.363(1); MSA 17.428(3)(1) is a statute of limitations and that, if not met, it bars an action under the Whistleblowers' Protection Act, regardless of the remedy requested.
Plaintiff next asks this Court to find that the period of limitation is unduly and unconstitutionally short. According to plaintiff, he, and non-union, non-governmental workers like him, who most need the protections of the statute, are naive about the law and unaware of their rights, so that a short 90-day period of limitation is unjust.
In creating a right, the Legislature may place reasonable restrictions on the exercise of that right, including specific time limitations. Forest v Parmalee, 402 Mich. 348, 359; 262 N.W.2d 653 (1978). Statutes of limitations are generally considered to be procedural requirements. Buscaino v Rhodes, 385 Mich. 474; 189 N.W.2d 202 (1971). As such, they are upheld by our courts unless it can be demonstrated that they are so harsh and unreasonable in their consequences that they effectively divest plaintiffs of the access to the courts intended by the grant of the substantive right. Forest v Parmalee, supra, p 359.
Here, the facts contradict plaintiff's assertion. By plaintiff's own admission, within one month of his severence from employment he sought advice of counsel and was specifically informed by labor board personnel of his potential cause of action against defendants under the Whistleblowers' Protection Act. Plaintiff has failed to make any showing that the statute of limitations has operated arbitrarily or capriciously in barring his cause of action. Id., p 357. The trial court's grant of accelerated judgment was proper.
Plaintiff next claims that it was error for the trial court to grant summary judgment in defendants' favor, finding plaintiff had failed to state a cause of action for breach of implied covenant of fair dealing and/or retaliatory discharge. Defendants assert that plaintiff's cause of action under the Whistleblowers' Protection Act is exclusive.
When a statute creates a new right or imposes a new duty having no counterpart in the common law, the remedies provided in the statute for violation are exclusive and not cumulative. Correlatively, a statutory remedy for enforcement of a common-law right is deemed only cumulative. Pompey v General Motors Corp, 385 Mich. 537, 552; 189 N.W.2d 243 (1971). Plaintiff has cited no authority for the proposition that there exists a common-law right to be free from discharge from employment for reporting an employer's violation of the law.
This Court has recognized a "public policy" exception to the general rule that at-will employment may be terminated at any time for any reason. Sventko v Kroger Co, 69 Mich. App. 644; 245 N.W.2d 151 (1976); Trombetta v Detroit, T I R Co, 81 Mich. App. 489; 265 N.W.2d 385 (1978). This exception is based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable. These proscriptions are most often 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. The Whistleblowers' Protection Act, MCL 15.362; MSA 17.428(2), is one of these statutes. Suchodolski v Michigan Consolidated Gas Co, 412 Mich. 692, 695; 316 N.W.2d 710 (1982).
The existence of a specific statutory prohibition against retaliatory discharge is critical in this case. Unlike Pompey, supra, which dealt with the exclusive-cumulative dichotomy regarding statutory remedies in the context of fundamental or civil rights, the instant case involves an alleged violation of a proprietary right. Lamphere Schools, supra. In Ohlsen v DST Industries, Inc, 111 Mich. App. 580; 314 N.W.2d 699 (1981), this Court considered whether a plaintiff had an action for retaliatory discharge where a specific provision of the Michigan Occupational Safety and Health Act prohibited retaliatory discharges. The Court stated:
"The plaintiff cites Sventko v Kroger Co, 69 Mich. App. 644; 245 N.W.2d 151 (1976), to support his argument that when an employer terminates the employment of an `at-will' employee, for purposes of circumventing the statutorily established public policy, the employee-victim of such conduct does have a cause of action.
"We adopt the rationale of the trial court:
"` Sventko can be distinguished from the present case by the fact that the workmen's compensation statute does not prohibit retaliatory discharges of employees who file claims under the act, while MIOSHA specifically prohibits such actions. See MCL 408.1065; MSA 17.50(65). Since the workmen's compensation statute does not directly prohibit retaliatory discharges by employers, the Court carved out an exception to the general rule that either party may terminate an employment at will for any reason or no reason by providing the discharged employee a remedy where none is provided under the statute.
"`In the present case, however, retaliatory discharges are expressly prohibited under the MIOSHA statute, and, in addition, a remedy is provided to an employee who claims a violation of the statute. Therefore, unlike the plaintiff in Sventko, the plaintiff in the present case has a remedy provided by the statute under which he is suing.'
"The Sventko decision does not extend to this case where the statute involved prohibits retaliatory discharge and provides an exclusive remedy." 111 Mich. App. 585-586.
Plaintiff also claims that the trial court erred in granting summary judgment on Count IV of the complaint, finding that it failed to state a cause of action against defendants Wasson and Spengler, officers of defendant corporation. There is case law support for a cause of action in favor of a discharged employee against a corporate official for tortious interference with the employee's at-will employment with the corporation. Tash v Houston, 74 Mich. App. 566; 254 N.W.2d 579 (1977). However, the facts pled by plaintiff here do not establish such an action. Plaintiff alleged that defendants terminated his employment because he reported to the labor board that the corporation was not paying overtime wages. This is a complaint against the corporation, not against corporate officials acting in their own personal interest. Id., p 574.
The trial court was correct. Under the facts of this case, the Whistleblowers' Protection Act is plaintiff's exclusive remedy.