Docket No. 121019.
Decided August 20, 1991, at 9:40 A.M. Leave to appeal sought.
Roy, Shecter Vocht, P.C. (by Lynn H. Shecter), for the plaintiff.
Dickinson, Wright, Moon, Van Dusen Freeman (by Henry W. Saad and Gary S. Casey), and H. Elliot Parnes, for the defendant.
Plaintiffs filed the instant lawsuit after plaintiff Arlene Shuttleworth was terminated from her employment by defendant in alleged retaliation for filing a complaint under the Michigan Occupational Safety and Health Act, MCL 408.1001 et seq.; MSA 17.50(1) et seq. The circuit court granted summary disposition pursuant to MCR 2.116(C)(8) in favor of defendant after finding that plaintiff Arlene Shuttleworth had failed to exhaust her administrative remedies under the MIOSHA and had failed to file a timely claim under § 2 of the Whistleblowers' Protection Act (WPA), MCL 15.362; MSA 17.428(2). Plaintiffs appeal as of right, and we affirm.
A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim solely on the basis of the pleadings. All factual allegations made in support of the claim are accepted as true, as well as any reasonable inferences that can be drawn therefrom. The motion is properly granted when the claim is so clearly unenforceable as a matter of law that no factual development could justify a right of recovery. Parkhurst Homes, Inc v McLaughlin, 187 Mich. App. 357, 360; 466 N.W.2d 404 (1991).
Plaintiffs contend that the trial court erred in finding that the WPA is the exclusive remedy for an employee who has been wrongfully discharged from employment for reporting an employer's violation of the law. Plaintiffs assert that a commonlaw cause of action for retaliatory discharge predated the WPA and that, therefore, the remedies are cumulative. We disagree.
The WPA 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. MCL 15.362; MSA 17.428(2). It is the general rule in this state that 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 its violation are exclusive and not cumulative. Pompey v General Motors Corp, 385 Mich. 537, 552; 189 N.W.2d 243 (1971). This Court in Covell v Spengler, 141 Mich. App. 76; 366 N.W.2d 76 (1985), held that no common-law counterpart existed before passage of the WPA and that, therefore, the act is the exclusive remedy for an employee whose employment is terminated in retaliation for reporting an employer's violation of the law. Plaintiffs have not cited, nor do we find, any commonlaw counterpart to the WPA.
Although plaintiffs maintain that retaliatory discharge actions predated passage of the WPA, they failed to direct this Court to any decision recognizing a common-law right for the type of retaliatory discharge that is now protected by the WPA. The only case that we can locate that held that a cause of action for discharge of an employee in retaliation for reporting an employer's violation of law existed before enactment of the WPA is Watassek v Dep't of Mental Health, 143 Mich. App. 556, 564; 372 N.W.2d 617 (1985). However, the panel in that case recognized the cause of action only after considering the public policy espoused in the WPA itself. The events at issue in Watassek occurred before the act took effect in 1981, and the panel therefore looked to the statute as evidence that a recognized public policy existed before the statute was enacted. We find that the conclusion in Watassek that there was a preexisting commonlaw counterpart to the WPA was nothing more than an attempt to give preenactment effect to a statutory right by fabricating a supposed preexisting common-law right wholly from the provisions of the subsequently enacted statute. We therefore decline to hold that a common-law counterpart preexisted the WPA.
Lastly, we note that a separate remedy under the MIOSHA was available to plaintiff Arlene Shuttleworth for being terminated in retaliation for filing a complaint or instituting a proceeding under that act. Tyrna v Adamo, Inc, 159 Mich. App. 592; 407 N.W.2d 47 (1987). However, before resorting to a civil action, she first must have pursued the administrative remedies contained in the MIOSHA. Schwartz v Michigan Sugar Co, 106 Mich. App. 471, 480; 308 N.W.2d 459 (1981). The trial court did not err in finding that plaintiff failed to state a claim.