                           STATE OF MICHIGAN

                            COURT OF APPEALS



JOEL RAMOS,                                                          FOR PUBLICATION
                                                                     January 30, 2018
               Plaintiff-Appellant,                                  9:05 a.m.

v                                                                    No. 335061
                                                                     Van Buren Circuit Court
INTERCARE COMMUNITY HEALTH                                           LC No. 16-066176-AA
NETWORK,

               Defendant-Appellee.


Before: HOEKSTRA, P.J., and STEPHENS and SHAPIRO, JJ.

SHAPIRO, J.

        In this action involving the wages and fringe benefits act, MCL 408.471 et seq., plaintiff
Joel Ramos filed an administrative employment wage complaint against his former employer,
defendant Intercare Community Health Network (ICHN), alleging that he had been illegally
discharged for engaging in a protected activity under MCL 408.483(1). The Wage and Hour
Program (WHP) of the Department of Licensing and Regulatory Affairs (LARA) ruled against
him in a determination order, concluding that plaintiff has not been discharged for engaging in
any of the protected activities listed in the statute. The circuit court affirmed the decision of the
WHP and plaintiff now appeals to this Court as of right. We affirm the circuit court because we
are bound by the precedent of Reo v Lane Bryant, Inc., 211 Mich App 364; 536 NW2d 556
(1995). Were we not bound by that opinion, we would reverse and remand for a new
determination from the WHP based upon the scope of the statute as discussed herein.
Accordingly, we call for a conflict panel per MCR 7.215(J)(2).

        Plaintiff worked for ICHN for approximately two years. He was discharged from his job
on June 26, 2015. At the time of his termination, ICHN informed plaintiff that he was being
discharged because he falsified his timesheet. Plaintiff filed an employment wage complaint
with the WHP. He maintained that he correctly filled out his timesheet and that, by accurately
filling out his timesheet, he was exercising a right to receive payment of his wages under the
wages and fringe benefits act. Based on the assertion that he was exercising a right under the act,




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plaintiff contended that under MCL 408.483(1), he could not be discharged for correctly filling
out his timesheet. He sought reinstatement and back pay under MCL 408.483(2).1

      MCL 408.483(1) prohibits an employer from discharging or discriminating against an
employee who engages in certain activities. In particular, the statute provides that:

                  An employer shall not discharge an employee or discriminate against an
         employee because the employee filed a complaint, instituted or caused to be
         instituted a proceeding under or regulated by this act, testified or is about to
         testify in a proceeding, or because of the exercise by the employee on behalf of an
         employee or others of a right afforded by this act. [MCL 408.483(1).]

The WHP did not make a substantive determination regarding whether plaintiff had falsified his
timecard. Instead, relying in part on Reo v Lane Bryant, Inc., 211 Mich App 364; 536 NW2d
556 (1995), the WHP concluded that whether or not plaintiff’s entries were accurate, filling out a
timecard on one’s own behalf did not constitute a protected activity because exercising a right on
one’s own behalf does not bring the individual within the purview of MCL 408.483(1).

        Plaintiff argues that the WHP and the circuit court2 erred by misinterpreting MCL
408.483(1); specifically, that they erred by concluding that an employee’s exercise of his own
rights under the wages and fringe benefits act is not protected under the statute. Plaintiff argues
that under the plain language of the statute, the exercise of his own rights under the act, is the
exercise of rights on behalf of “an employee” because he is “an employee.”



1
    MCL 408.483(2) provides as follows:
                 An employee who believes that he or she is discharged or otherwise
         discriminated against by an employer in violation of this section may file a
         complaint with the department alleging the discrimination within 30 days after the
         violation occurs. Upon receipt of the complaint, the department shall cause an
         investigation to be made. If, upon the investigation, the department determines
         that this section was violated, the department shall order the rehiring or
         reinstatement of an employee to his or her former position with back pay.
2
  “This Court’s review of a circuit court’s ruling on an appeal from an administrative decision is
limited.” Buckley v Prof Plaza Clinic Corp, 281 Mich App 224, 231; 761 NW2d 284 (2008).
“This Court must determine whether the lower court applied correct legal principles and whether
it misapprehended or grossly misapplied the substantial evidence test to the agency’s factual
findings.” Id. “This latter standard is indistinguishable from the clearly erroneous standard of
review that has been widely adopted in Michigan jurisprudence. As defined in numerous other
contexts, a finding is clearly erroneous when, on review of the whole record, this Court is left
with the definite and firm conviction that a mistake has been made.” Logan v Manpower of
Lansing, Inc, 304 Mich App 550, 555; 847 NW2d 679 (2014) (quotation marks and citation
omitted).



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        Notably, this Court has previously addressed this issue and concluded that to fall within
the plain meaning of MCL 408.483(1), “an employee must be exercising a right afforded by the
act on behalf of another employee or other person. Simply exercising a right on one’s own
behalf would not bring an employee within the purview of [MCL 408.483].” Reo, 211 Mich
App at 367. Under Reo, plaintiff’s exercise of rights on his own behalf would not be protected
under MCL 408.483(1).3

        While we are bound by the Reo decision, we conclude that it was wrongly decided. MCL
408.403(1) does not refer to “another” or “a different” employee; it refers to “an employee.” The
word “another” does not even appear in MCL 408.483(1). This substitution of one word for
another is inconsistent with the principle that “[t]he statute’s words are the most reliable
indicator of the Legislature’s intent and should be interpreted based on their ordinary meaning
and the context within which they are used in the statute.” Burleson v Dep’t of Environmental
Quality, 292 Mich App 544, 557-558; 808 NW2d 792 (2011) (quotation marks and citation
omitted). Accordingly, this Court “may not substitute . . . a word chosen by the Legislature or
mistakenly assume that the Legislature mistaken used one word or phrase instead of another.”
Id. at 558; Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002) (holding
that courts “may not assume that the Legislature inadvertently made use of one word or phrase
instead of another”) (quotation marks and citation omitted).

        “When a statute does not define a word, we presume the Legislature intended the word to
have its plain and ordinary meaning, which we may discern by consulting a dictionary.” Denton
v Dep’t of Treasury, 317 Mich App 303, 312; 894 NW2d 694 (2016). In relevant part, Merriam
Webster’s Collegiate Dictionary (11th ed) defines “a” as “used as a function word before a
singular nouns when the referent is unspecified.” The definition of “another,” the word
substituted in Reo, is defined as “different or distinct from the one first considered.”

        We also note that Reo stands alone in its holding. The first Court of Appeals’ case to
address the question, Cockels v Int’l Business Expositions, Inc, 159 Mich App 30; 406 NW2d
465 (1987), applied the protections to a situation in which an employee exercised a right under
the act on behalf of himself. Cockels was decided before the adoption of MCR 7.215(J)(1), and
so was not precedentially binding on Reo. However, the opinion in Reo offers little basis to have
rejected Cockels. The entire discussion of the issue in Reo reads:

              We believe that in order to fall within the plain meaning of the above
       provision an employee must be exercising a right afforded by the act on behalf of


3
  We disagree with plaintiff’s argument that Reo’s consideration of this issue amounted to mere
dicta and should not be given precedential authority. “Dictum” is defined as “[a] judicial
comment made during the course of delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential (though it may be considered persuasive).”
Mount Pleasant Pub Sch v Mich AFSCME Council 25, 302 Mich App 600, 610 n 2; 840 NW2d
750 (2013) (quotation marks and citation omitted). In Reo, the Court clearly relied on the
specific language of the statute at issue in this case to conclude that the plaintiff’s claim based
upon the exercise of his own rights was not protected.


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      another employee or other person. Simply exercising a right on one’s own behalf
      would not bring an employee within the purview of § 13. [Reo, 211 Mich App at
      367.]

As to the decision in Cockel, the Reo Court stated only that “[w]e believe [Cockel’s]
interpretation to be incorrect.” Id. n 3.

       We affirm because Reo is binding precedent, MCR 7.215(C)(2). However, we conclude
that Reo was wrongly decided and that a conflict panel should evaluate its reasoning and
conclusions. MCR 7.215(J)(2).

      Affirmed.



                                                        /s/ Douglas B. Shapiro
                                                        /s/ Cynthia Diane Stephens




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