Dudewicz v. Norris Schmid, Inc

*81Boyle, J.

I respectfully dissent from my colleagues’ conclusion that the Whistleblowers’ Protection Act (wpa)1 prohibits discharge under these facts. In my view, the plaintiff was not engaging in protected activity as defined by the wpa. However, because plaintiff has alleged that his employment was conditioned on his agreement to refuse to prosecute criminal activity of which he had knowledge, he has stated a claim for which relief may be granted for wrongful discharge in violation of public policy. I would affirm the decision of the Court of Appeals and remand this case to the trial court for further proceedings.

I

A prima facie case of retaliation under the Whistleblowers’ Protection Act requires a showing that the plaintiff was engaged in protected activity as defined by the act. The act provides in relevant part: "An employer shall not discharge ... an employee . . . because the employee . . . reports ... a violation ... of a law or regulation or rule ... to a public body . . . .”2

The act expressly protects employees who report violations of law, but it is less than clear regarding both the identity of the lawbreaker and the circumstances under which the violation of law must occur. The statute does not state who the employee must suspect as having violated the law, nor does it expressly describe the setting in which the violation must have occurred or the relationship the illegal conduct must bear to the conduct of business. In short, the statute is ambiguous.

*82A

It is axiomatic that if the language of a statute is unambiguous, this Court must read and apply it as written. Where the statute is ambiguous, "the object of the statute [and] the harm which it is designed to remedy” are relevant indications of intent. In re Forfeiture of $5,264, 432 Mich 242, 248; 439 NW2d 246 (1989).

Applying these principles, I agree with the majority’s conclusion that restricting the protection afforded by the wpa only to reports of employer violations of law would be contrary not only to the intent of the Legislature, but also to the language of the statute. The plain language of the act provides that an "Employer includes an agent of an employer . . . .”3 An agent of an employer very well may be a co-worker of the employee who is reporting a violation. Furthermore, as the majority notes, the legislative analyses support this interpretation. The analyses recognize that "employees are naturally reluctant to inform on an employer or a colleague.”4

B

I disagree with the majority’s conclusion that the wpa applies to protect the activity in this case. That conclusion imparts an expansive interpretation to the statute that is not supported by the statutory purpose or the context in which the statute was enacted. As amicus curiae, Aclu Fund of Michigan, points out, Michigan was the first state to grant statutory protection to employees who reported an employer’s illegal activity. The act was, in part, the Legislature’s response to an incident of accidental chemical contamination of *83livestock feed.5 Employees of the chemical company that had mistakenly substituted poisonous fire retardant for nutritional supplements "were warned not to volunteer information about the . . . accident to investigators or else they would be fired.”6

I agree with amicus curiae and the majority that the act is designed both to encourage employees to assist in law enforcement and to protect those employees who engage in whistleblowing activities. However, this observation fails to take account of a significant focus of the statute noted in the bill analyses. A whistleblowing employee alerts the public to the employer’s, or a co-worker’s, "corruption or criminally irresponsible behavior in the conduct of government or large businesses . . . .”7 I conclude that the ambit of the wpa protects activity involving a report by an employee of an employer’s or co-worker’s illegal business practices or other violations of law, regulation, or rule that occur as a result of the conduct of business. In other words, where the conduct of business itself violates a law, statute, or regulation, an employee’s report of that illegal conduct is protected activity.

In the instant case, the criminal act committed by the plaintiff’s co-worker did not involve corrupt or illegal business practices of the employer or coworker, or result from the conduct of the employer’s business, and is therefore not within the umbrella of activity protected under the wpa. Because the plaintiff was not engaged in activity protected under the wpa, I would reverse the decision of the *84Court of Appeals. The trial court correctly granted defendant’s motion for directed verdict.

II

I would further hold that plaintiff’s activity is protected as a matter of the fundamental public policy of this state as expressed in its Penal Code. Therefore, I would affirm the decision of the Court of Appeals on this question and remand this case for trial.

Where an employment relationship is at will, either party to the relationship "may terminate it at any time for any, or no, reason.” Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 695; 316 NW2d 710 (1982). However, where the employee is discharged on grounds that "are so contrary to public policy,” the discharge may be actionable, even though the employment relationship allowed termination for no reason at all. Id.

While "the Court has acted with circumspection in carrying out public policy exceptions to the 'at will’ doctrine[,]” Clifford v Cactus Drilling Corp, 419 Mich 356, 367; 353 NW2d 469 (1984) (Williams, C.J., dissenting),8 grounds for discharge that are contrary to public policy have been found in statutes that expressly prohibit discharge of employees who exercise rights or observe duties created by statute, or implied from legislative expressions of policy or an employee’s exercise of a right conferred by a well-established legislative enactment. Suchodolski, 412 Mich 695-696.

The plaintiff in an action for wrongful discharge in violation of public policy must show that the "plaintiff engaged in protected activity. The activi*85ty’s protection may stem either from a constitutional or statutorily granted right or from an obligation favored by statutory policy.” Clifford, 419 Mich 368 (Williams, C.J., dissenting), citing Schlei & Grossman, Employment Discrimination Law, ch 15, p 534 (Washington, D.C.: Bureau of National Affairs, 1983).

Courts addressing similar questions have inferred claims for wrongful discharge from " 'sufficient legislative expression’ of a policy that prohibits an employer from conditioning employment upon the employee’s agreement to conceal or stifle an investigation into a crime.” Pratt v Brown Machine Co, 855 F2d 1225, 1237 (CA 6, 1988). Thus, where an employee informed law enforcement officials that one of his co-workers may have violated the criminal code, agreed to assist in the investigation and trial, and was later fired for his role in the investigation, the employee had made out a claim of retaliatory discharge in violation of public policy. In Palmateer v Int'l Harvester Co, 85 Ill 2d 124, 132; 421 NE2d 876 (1981), the Illinois Supreme Court noted:

There is no public policy more basic, nothing more implicit in the concept of ordered liberty . . . than the enforcement of a State’s criminal code. . . . There is no public policy more important or more fundamental than the one favoring the effective protection of the lives and property of citizens. . . .
No specific constitutional or statutory provision •requires a citizen to take an active part in the ferreting out and prosecution of crime, but public policy nevertheless favors citizen crime-fighters. "Public policy favors the exposure of crime, and the cooperation of citizens possessing knowledge thereof is essential to effective implementation of that policy. Persons acting in good faith who have probable cause to believe crimes have been com*86mitted should not be deterred from reporting them by . . . fear . . . [Quoting Joiner v Benton Community Bank, 82 Ill 2d 40, 44; 411 NE2d 229 (1980).]

The public policy favoring encouraging citizens’ cooperation in the prosecution of crime obtains even more forcefully when a citizen is deterred from cooperation with the police solely because the consequence will be loss of gainful employment.

The Legislature has declared that assault and battery is a crime.9 Victims of crime are encouraged to report crime and, if the report is timely made, may be compensated for out-of-pocket losses for personal injuries incurred as a result of the crime.10 Finally, the compounding statute, MCL 750.540e; MSA 28.808(5), even if not applicable where the underlying activity is a misdemeanor, is additional and further evidence for finding sufficient legislative expression of a policy prohibiting an employer from conditioning employment on an employee’s refusal to prosecute a crime.

I would hold that the plaintiff’s assertion that he was the victim of an assault by a coemployee and that he was terminated for the reason that he refused to forswear redress in the criminal justice system stated a claim for wrongful discharge in violation of Michigan’s public policy.11 "To allow the discharge of an at-will employee because of a choice to file a criminal complaint against a fellow employee would force a choice between justice and livelihood. It is the public policy of this state to protect its citizens from such an onerous choice.” 192 Mich App 247, 253; 480 NW2d 612 (1991).

*87III

In sum, the plaintiff did not engage in activity-protected under the wpa when he filed a criminal complaint against a co-worker. The wpa was enacted to protect employees who report corrupt or illegal business practices or violations of law by an employer or co-worker that result from the conduct of the employer’s business. The employer’s demand that the employee withdraw the criminal complaint against his co-worker or be fired was an alleged violation of a clearly established public policy of this state.12

Thus, I would affirm the decision of the Court of Appeals regarding the public policy claim, and reverse the decision of the Court of Appeals with respect to the Whistleblowers’ Protection Act claim.

MCL 15.361 et seq.; MSA 17.428(1) et seq.

MCL 15.362; MSA 17.428(2).

MCL 15.361(b); MSA 17.428(l)(b).

House Legislative Analysis, HB 5088, 5089, First Analysis, April 17, 1980; Second Analysis, February 5, 1981.

Barcia, Update on Michigan’s Whistleblowers’ Protection Act, 1988 Det Col LR 1, 1-2. Senator James A. Barcia introduced and sponsored the bill that became the Whistleblowers’ Protection Act. Id. at 2.

Id. at 2.

House Legislative Analyses, n 4 supra. (Emphasis added.)

The federal courts have also been reluctant to infer a cause of action where Congress has not expressly created one. See 19 Wright, Miller & Cooper, Federal Practice & Procedure, § 4514, p 241.

MCL 750.81; MSA 28.276.

MCL 18.351 et seq.; MSA 3.372(1) et seq.

I, of course, do not suggest that an employer has no remedy against a disruptive employee, or that an employer does not have a good-faith defense to a claim filed in this recognized cause of action.

Given the conclusions that the plaintiff has stated a claim for wrongful discharge under the public policy exception to the employment at will doctrine, and that the defendant’s motion for directed verdict was correctly granted on the basis of the Whistleblowers’ Protection Act because plaintiff was not engaged in protected activity under the wpa, it is unnecessary to decide whether the wpa provides plaintiff’s exclusive remedy.