MICHAEL LEWANDOWSKI V NUCLEAR MANAGEMENT CO LLC
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL LEWANDOWSKI,
FOR PUBLICATION
August 17, 2006
9:10 a.m.
Plaintiff-Appellant,
v
NUCLEAR MANAGEMENT COMPANY, LLC,
No. 268511
Van Buren Circuit Court
LC No. 04-52-571-NO
Defendant-Appellee.
Official Reported Version
Before: Zahra, P.J., and Neff and Owens, JJ.
PER CURIAM.
Plaintiff appeals as of right a grant of summary disposition to defendant pursuant to MCR
2.116(C)(8), as well as the subsequent denial of plaintiff 's motion to amend his complaint. This
case arose when defendant terminated plaintiff 's employment after plaintiff reported defendant
to the Nuclear Regulatory Commission (NRC). We affirm.
Plaintiff began working full-time for Consumers Energy in 1978. In 1981, he transferred
to the Palisades Nuclear Plant. In July 2001, defendant began managing the station. According
to plaintiff 's supervisor, James Ridley, he gave plaintiff a C rating in plaintiff 's 2002 year-end
performance evaluation. A C rating was the lowest rating an employee could receive, and it
resulted in the initiation of a 90-day performance improvement plan. Plaintiff 's performance
improvement plan required plaintiff to file three corrective action programs (CAPs). CAPs were
designed to identify and resolve problems, and the NRC's on-site inspector had access to the
CAPs. By March 11, 2003, plaintiff had filed two of the three CAPs. On March 23, 2003, a
crane operator pushed aside a "lock high radiation area" barricade while operating the crane.
Plaintiff claimed that he was told not to file a CAP about the incident, so he contacted the NRC's
on-site inspector. The NRC initiated an investigation. The NRC also investigated other
allegations by plaintiff.
In March 2004, plaintiff applied for short-term disability. He was terminated June 25,
2004; the reason given for termination was plaintiff 's failure to comply with requests for medical
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records, which resulted in his being absent without approval since June 21, 2004.1 Plaintiff filed
suit against defendant and Consumers Energy under the Whistleblowers' Protection Act (WPA),
MCL 15.361 et seq., claiming that he was wrongfully discharged. Consumers Energy was
dismissed from the lawsuit by stipulation and order. The complaint was amended by stipulation,
first to add a claim under the Family and Medical Leave Act (FMLA), 29 USC 2601 et seq., then
to remove references to Consumers Energy as a defendant. Defendant moved for summary
disposition pursuant to MCR 2.116(C)(8) and (10) on the ground that plaintiff could not
establish a claim under the WPA because the NRC was not a "public body" as defined by the
WPA.2 The trial court granted defendant summary disposition. Plaintiff moved to amend the
complaint to add a claim of public-policy wrongful discharge. After oral argument, the court
denied plaintiff 's motion on the ground that amendment would be futile.
Plaintiff first argues that the trial court erred when it determined that the NRC was not a
public body. We disagree.
A trial court's grant of summary disposition pursuant to MCR 2.116(C)(8) is reviewed de
novo. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). Whether a plaintiff has
established a prima facie violation of the WPA is also considered de novo. Manzo v Petrella,
261 Mich App 705, 711; 683 NW2d 699 (2004). Under the WPA, an employer may not
discharge an employee because the employee reports a violation of a federal law to a public
body. MCL 15.362. Plaintiff claimed he was discharged in violation of the act because he
reported defendant's violations to the NRC. The trial court granted defendant summary
disposition because it found that the NRC, as a federal agency, was not a public body as defined
by the act. When a statute provides a definition for a term, the term must be applied as defined.
Barrett v Kirtland Community College, 245 Mich App 306, 314; 628 NW2d 63 (2001). MCL
15.361(d) defines "public body" in relevant part as:
(i) A state officer, employee, agency, department, division, bureau, board,
commission, council, authority, or other body in the executive branch of state
government.
(ii) An agency, board, commission, council, member, or employee of the
legislative branch of state government.
1
The parties present many facts with respect to plaintiff 's work performance and medical
condition. The court granted summary disposition on the ground that the NRC was not a public
body within the meaning of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., and
denied plaintiff 's motion to amend his complaint because the proposed count was barred by law.
Because consideration of plaintiff 's work performance and medical condition is unnecessary to
resolve the issues on appeal, a detailed rendition of these facts is not presented.
2
Defendant also moved for, and was granted, summary disposition on plaintiff 's FMLA count;
because plaintiff has not appealed summary disposition with respect to this count, the
circumstances surrounding the court's decision on this ground are not discussed.
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(iii) A county, city, township, village, intercounty, intercity, or regional
governing body, a council, school district, special district, or municipal
corporation, or a board, department, commission, council, agency, or any member
or employee thereof.
(iv) Any other body which is created by state or local authority or which is
primarily funded by or through state or local authority, or any member or
employee of that body.
(v) A law enforcement agency or any member or employee of a law
enforcement agency.
(vi) The judiciary and any member or employee of the judiciary.
Specifically, plaintiff argues that MCL 15.361(d)(iii) contains three series separated by "or," and
thus the third series, "a board, department, commission, council, agency, or any member or
employee thereof," is not limited to state or local authority. In Breighner v Michigan High
School Athletic Ass'n, Inc, 471 Mich 217, 232; 683 NW2d 639 (2004), our Supreme Court did
not interpret a similar definition of "public body," found in MCL 15.232(d)(iii), in the same
fashion. MCL 15.232(d)(iii) provides that a public body is:
[a] county, city, township, village, intercounty, intercity, or regional governing
body, council, school district, special district, or municipal corporation, or a
board, department, commission, council, or agency thereof.
The Court found that this subsection "designates several distinct governmental units as public
bodies, and proceeds to include in this definition any 'agency' of such a governmental unit."
Breighner, supra at 232. The subsection before us ends with "or any member or employee
thereof" rather than "or agency thereof." MCL 15.361(d)(iii). Nevertheless, because the
adjective "any" refers to both "member" and "employee," the phrase "any member or employee"
is a singular term like "agency," and, thus, the difference in wording does not require an
interpretation of MCL 15.361(d)(iii) different from the interpretation in Breighner.
Moreover, when interpreting a clause in a statute, courts must consider the context in
which the clause was used. Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 533;
697 NW2d 895 (2005). Here, the first subsection of MCL 15.361(d) refers to the executive
branch of state government. MCL 15.361(d)(i). The second subsection refers to the legislative
branch of state government. MCL 15.361(d)(ii). The first and second series of the third
subsection clearly refer to local government. MCL 15.361(d)(iii). The fourth subsection refers
to any other body created by or funded by or through state or local authority and, hence, does not
encompass the federal government. MCL 15.361(d)(iv). Given the clearly state and local
context of the first four subsections, to interpret the third series of the third subsection to include
federal agencies or commissions would be to interpret the series out of context. Griffith, supra at
533. Hence, plaintiff cannot sustain his argument under MCL 15.361(d)(iii).
Plaintiff also argues that the NRC, as a law enforcement agency, would be a public body
under MCL 15.361(d)(v). Unlike MCL 15.361(d)(i) through (iii), MCL 15.361(d)(v) and (vi) do
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not contain language limiting their application to state or local government. Construing "law
enforcement agency" under MCL 15.361(d)(v) to include a federal law enforcement agency
would be consistent with the Supreme Court's determination in Dolan v Continental
Airlines/Continental Express, 454 Mich 373, 375, 382-383; 563 NW2d 23 (1997), a case in
which the plaintiff reported suspected violations by third parties to the federal Drug Enforcement
Agency.3 Therefore, the question is whether the NRC could be considered a law enforcement
agency. Having reviewed the authority cited by plaintiff, we conclude that it fails to resolve the
issue.
Instead, we note that 44 USC 3502(5) specifically designates the NRC as an independent
regulatory agency; 21 USC 872a(a) and (b)(2), 23 USC 127(a)(12)(C), and 31 USC 310(b)(2)(E)
all refer to law enforcement and regulatory agencies separately, which indicates that a regulatory
agency is not considered a law enforcement agency. Additionally, MCL 761.1(p) (definition of
"federal law enforcement officer") and MCL 764.15d (enumerating the power of a federal law
enforcement officer to enforce state law) are both contained in the Code of Criminal Procedure,
MCL 760.1 et seq., indicating that "law enforcement" refers to the prevention of criminal
activities rather than the regulation of industries. Furthermore, of the 153 published Michigan
cases since 1933 containing the term "law enforcement agency," none referred to the term to
define a civil regulatory agency. Words or phrases in a statute should be given their ordinary
and commonly understood meanings. Campbell v Sullins, 257 Mich App 179, 188; 667 NW2d
887 (2003). Thus, the NRC is not a law enforcement agency as contemplated by the WPA.
Plaintiff next argues that the trial court abused its discretion in denying his motion to
amend his complaint to add a claim of public-policy wrongful discharge because plaintiff still
had viable claims under the second and third prongs of Suchodolski v Michigan Consolidated
Gas Co, 412 Mich 692, 694-696; 316 NW2d 710 (1982). We disagree.
A trial court's denial of leave to amend pleadings is reviewed for an abuse of discretion.
Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320 (2004). Leave to amend the
pleadings should be freely granted to the nonprevailing party upon a grant of summary
disposition unless the amendment would be futile or otherwise unjustified. Id. at 52-53. The
trial court denied plaintiff 's motion to amend his pleadings to include a claim of public-policy
wrongful discharge on the ground that the amendment would have been futile.
In Suchodolski, supra at 694-695, our Supreme Court found that although employment in
Michigan was generally at will, an employee could bring suit for wrongful discharge if the
grounds for discharge violated public policy. It noted that public policy is violated when (a) a
statute specifically prohibits the discharge, (b) the employee is discharged for refusing to violate
the law, or (c) the employee is discharged for exercising a well-established statutory right. Id. at
695-696. The first prong involves an express cause of action, while the second and third prongs
3
The Dolan Court did not address whether the Drug Enforcement Agency was a "public body"
as defined by the WPA.
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involve implied causes of action. Id. However, if a statute provides a remedy for a violation of a
right, and no common-law counterpart right exists, the statutory remedy is typically the
exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78; 503 NW2d 645 (1993).
Moreover, an employee has no common-law right to avoid termination when he or she reports an
employer's violation of the law. Id. In other words, a public-policy claim may only be sustained
if there is no applicable statute prohibiting retaliatory discharge for the conduct at issue. Id. at
80.
Citing Driver v Hanley (After Remand), 226 Mich App 558, 566; 575 NW2d 31 (1997),
plaintiff argues that if the WPA provides no remedy at all, it cannot be a plaintiff 's exclusive
remedy. While Driver does stand for this proposition, the trial court did not find plaintiff 's
proposed amendment futile on the basis of the WPA; rather, it determined that the prohibition in
42 USC 58514 against retaliatory discharge rendered the proposed amendment futile. 42 USC
5851(a)(1) prohibits an employer from discharging an employee on the ground that the employee
(1) notified the employer of a purported violation, (2) refused to violate the Atomic Energy Act,
or (3) caused a proceeding to commence under the act. And a public-policy violation can be
premised on a violation of a federal statute. Garavaglia v Centra, Inc, 211 Mich App 625, 631;
536 NW2d 805 (1995).5 Hence, plaintiff 's claim clearly does not survive the first prong of
Suchodolski.
The question is whether plaintiff 's claim based on the same express statute can survive
under the second or third implied prong when it could not survive under the first express prong.
Citing Edelberg v Leco Corp, 236 Mich App 177, 180 n 2; 599 NW2d 785 (1999), plaintiff
argues that Dudewicz only precludes a cause of action under the first prong of Suchodolski when
an express statutory right exists. The footnote in Edelberg cited here by plaintiff addressed an
issue not raised by either of the parties and, thus, was merely nonbinding dicta. Edelberg, supra
at 183. The Edelberg Court properly addressed the plaintiff 's rather convoluted argument with
respect to the third prong of Suchodolski as presented, but noted in the footnote that the
plaintiff 's claim would not have survived under Dudewicz; its casual reference to "the first
prong" did not indicate that a cause of action could survive under the second and third prongs
when it failed to survive under the first prong. See id. at 180 n 2.
4
Plaintiff also relies on 42 USC 5846 to support his public-policy wrongful discharge claim. 42
USC 5846 provides that a responsible officer who fails to notify the commission of a failure to
comply with a safety regulation or of a defect will be subject to a civil penalty. This statute does
not confer a right on plaintiff; however, assuming plaintiff is considered a responsible officer
within the meaning of the statute, it may impose a duty. Moreover, plaintiff arguably was
refusing to violate this statute when he notified the NRC of the purported violations.
Nevertheless, 42 USC 5846 is part of the same act as 42 USC 5851, which provides a statutory
right.
5
But see Calabrese v Tendercare of Michigan, Inc, 262 Mich App 256, 266; 685 NW2d 313
(2004), in which this Court noted that if preemption had been raised in Garavaglia with respect
to the National Labor Relations Act, the Court would have found the plaintiff 's state claim
preempted.
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Notably, in Dudewicz, after determining that a specific statutory prohibition against
retaliatory discharge rendered a public-policy wrongful discharge claim unviable, the Supreme
Court did not then analyze the public-policy wrongful discharge claim under the second and
third prongs of Suchodolski. Dudewicz, supra at 79-80. Plaintiff here did not cite any case in
which a public-policy wrongful discharge claim was found inapplicable because of an express
statutory prohibition against discharge, but a public-policy wrongful discharge claim was then
found viable under the second or third prong of Suchodolski. Even in Edelberg, supra at 184,
this Court found that the plaintiff 's claim under the third prong of Suchodolski failed. Therefore,
plaintiff 's argument fails here.
Affirmed.
/s/ Brian K. Zahra
/s/ Janet T. Neff
/s/ Donald S. Owens
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