Chandler v. Dowell Schlumberger, Inc

542 N.W.2d 310, 214 Mich. App. 111, 11 I.E.R. Cas. (BNA) 707
CourtMichigan Court of Appeals
DecidedOctober 24, 1995
DocketDocket 166009
StatusPublished
Cited by11 cases

This text of 542 N.W.2d 310 (Chandler v. Dowell Schlumberger, Inc) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chandler v. Dowell Schlumberger, Inc, 542 N.W.2d 310, 214 Mich. App. 111, 11 I.E.R. Cas. (BNA) 707 (Mich. Ct. App. 1995).

Opinions

Markman, J.

Plaintiff appeals from an opinion and order of the Midland Circuit Court granting summary disposition in favor of defendant. We affirm.

Plaintiff was employed by defendant beginning in June 1989. In January 1992, a new regulation went into effect requiring that defendant obtain certification for vehicles transporting hazardous materials on public roads. Plaintiff complained to defendant’s agents regarding defendant’s inconsistent compliance with the regulation. However, plaintiff did not report the violation to any public authority. On April 6, 1992, defendant was cited by the Michigan Department of Transportation for violating the regulation as a result of an anonymous tip. Shortly thereafter, defendant terminated plaintiffs employment.

On July 8, 1992, plaintiff filed a complaint alleging that defendant was liable under the Whistle-blowers’ Protection Act (wpa), MCL 15.361 et seq.; MSA 17.428(1) et seq. Defendant moved for sum[113]*113mary disposition pursuant to MCR 2.116(C)(8) and (10), alleging that plaintiff had been dismissed because of economic necessity and that plaintiff could not recover under the wpa because he had not engaged in the protected activity of reporting or being about to report illegal conduct to a public authority. The trial court granted defendant’s motion pursuant to. MCR 2.116(C)(10), reasoning that because plaintiff had never reported a violation to a public authority, he had not engaged in protected activity and thus had failed to state a prima facie case under the wpa.

Plaintiff argues that the wpa protects an employee who has been discharged because of an erroneous perception that the employee has reported a violation of law, regulations, or rules to a public body. We disagree.

The starting point in every case involving construction of a statute is the language itself. House Speaker v State Administrative Bd, 441 Mich 547, 567; 495 NW2d 539 (1993). The wpa, at MCL 15.362; MSA 17.428(2), provides the following:

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.

This Court has stated that under the wpa a [114]*114prima facie case of retaliatory discharge requires proof (1) that the plaintiff was engaged in protected activities as defined by the act, (2) that the plaintiff was subsequently discharged, and (3) that a causal connection existed between the protected activity and the discharge. Tyrna v Adamo, Inc, 159 Mich App 592, 601; 407 NW2d 47 (1987). The issue in this case involves the first and third requirements. The plaintiff did not report, nor does he argue that he was about to report, his employer’s violations to a public body. Thus, he was not "engaged in protected activities as defined by the act.” Because he was not so engaged, there also exists a lack of a causal connection between the discharge and "the protected activity.”

Plaintiff claims, however, that he is entitled to protection under the wpa as a "perceived whistle-blower.” In support of his claim, plaintiff points to Sanchez v Lagoudakis, 440 Mich 496; 486 NW2d 657 (1992), in which the Michigan Supreme Court held that the Michigan Handicappers’ Civil Rights Act (mhcra) prohibited employer discrimination based on erroneous perception of membership in a protected category. The mhcra specifically provided a cause of action to employees who were subject to discrimination "because of a handicap.” MCL 37.1202(1); MSA 3.550(202X1); Sanchez, supra at 502. The Court held that the mhcra covered those érroneously perceived of as having a handicap, reasoning:

The focus of the act was the basis of the employer’s conduct — the employer’s belief or intent — and not the employee’s condition. If the employer acts on a belief that the employee has a handicap, and subsequently discharges or otherwise discriminates against the employee on the basis of that belief, it is inconsequential whether the employee actually has the handicap because, in either hypothesis, the [115]*115employer has undertaken the kind of discriminatory action that the act prohibits.16

Although not applicable to the case before it, the Supreme Court noted that in 1990, the Legislature amended the definition of "handicap” to include "[b]eing regarded as having” a handicap. Id. at 506.

Plaintiff urges this Court to follow the rule established in Sanchez to afford protection to perceived whistleblowers. Plaintiff further points to Polk v Yellow Freight System, Inc, 801 F2d 190 (CA 6, 1986), in support of his claim. In Polk, the court concluded that a visit to the Michigan Civil Rights Commission was a protected activity under the Civil Rights Act, MCL 37.2101 et seq.; MSA 3.548(101) et seq. As. the court noted, the act "prohibits discrimination or retaliation against a' person 'because the person has opposed a violation of this act, or because the person has made a charge, filed a complaint, testified, assisted, or participated in an investigation, proceeding, or hearing under this act.’ [MCL 37.2701(a); MSA 3.548(701)(a)].” Id. at 197. The court, citing Gifford v Atchinson, T & S F R Co, 685 F2d 1149, 1156, n 3 (CA 9, 1982), found no legal distinction between filing a charge and threatening to file a charge. Id. at 200. The court then reasoned:

We see no reason to distinguish between a visit to a government agency to inquire about filing a [116]*116charge and a threat to file a charge. In both instances, the focus is not on whether the employee intends to follow through with, filing the charge, but rather on whether the employer’s decision to discharge was motivated by an improper desire to retaliate against an employee for pursuing rights granted by the Act. [Polk, supra at 200.]

The issue whether the wpa affords protection to a perceived whistleblower has not been examined in Michigan.1 However, the issue of an employer’s knowledge or belief under the wpa was addressed in Kaufman & Payton, PC v Nikkila, 200 Mich App 250; 503 NW2d 728 (1993). In Kaufman & Payton, the counterplaintiff was employed by the law firm of Kaufman & Payton, P.C. Id. at 252. After becoming concerned with the legality of billing procedures that she had executed, she consulted outside counsel who subsequently sent letters to the firm questioning its billing practices and addressing the counterplaintiff’s future duties. Id. at 252-253. The counterplaintiff subsequently resigned. Id. at 253. Thereafter, she sent a request for investigation to the Attorney Grievance Commission and followed up with a formal complaint. Id.

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542 N.W.2d 310, 214 Mich. App. 111, 11 I.E.R. Cas. (BNA) 707, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chandler-v-dowell-schlumberger-inc-michctapp-1995.