            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                             STATE OF MICHIGAN

                             COURT OF APPEALS



CLEVELAND STEGALL,                                                 UNPUBLISHED
                                                                   September 24, 2019
               Plaintiff-Appellant,

v                                                                  No. 341197
                                                                   Oakland Circuit Court
RESOURCE TECHNOLOGY CORPORATION,                                   LC No. 2016-155043-CD
doing business as BRIGHTWING, and FCA US,
LLC,

               Defendants-Appellees.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

GLEICHER, J. (dissenting).

        Plaintiff Cleveland Stegall worked as an information and communication technology
support specialist at defendant Fiat Chrysler Automobile’s (FCA) Sterling Heights Assembly
Plant (SHAP). FCA terminated Stegall’s employment two months after he reported possible
asbestos contamination in his workplace and requested air quality testing and safety gear. The
majority holds that Stegall’s public policy tort claim against FCA fails because he complained
only internally, and his asbestos concerns ultimately proved groundless. Stegall’s claim under
the Whistleblower’s Protection Act (WPA) meets a similar fate. According to the majority,
Stegall failed to present evidence of any causal connection between his subsequent complaint
about the asbestos situation to the Michigan Occupational Safety and Health Administration
(MiOSHA) and his termination by Brightwing, a staffing agency. I respectfully dissent from
both holdings.

                                      I. PUBLIC POLICY TORT

        In Suchodolski v Mich Consolidated Gas Co, 412 Mich 692, 694-695; 316 NW2d 710
(1982), our Supreme Court held that even though an at-will employee is subject to termination at
any time and for no stated reason, “some grounds for discharging an employee are so contrary to
public policy as to be actionable.” A handful of Michigan statutes create causes of action rooted
in public policy, including the Civil Rights Act, MCL 37.2701 et seq., and the People with
Disabilities Civil Rights Act, MCL 37.1602 et seq. In Suchodolski, the Supreme Court identified
several common-law grounds for a public policy claim: discharge for “failure or refusal to
violate a law in the course of employment,” or for exercising a well-established statutory right.
Id. at 695-696. Suchodolski’s “enumeration of ‘public policies’ that might forbid termination of
at-will employees was not phrased as if it was an exhaustive list.” Kimmelman v Heather Downs
Mgt Ltd, 278 Mich App 569, 573; 753 NW2d 265 (2008).

        The public policy involved in this case flows from federal laws protecting the rights of
workers to express concerns about possible exposure to asbestos, and to demand air quality
testing to allay those concerns. Asbestos was once a ubiquitous insulation material. In the
1970s, it was determined to be a carcinogen. See Asbestos, Report on Carcinogens (14th ed),
available     at    <https://ntp.niehs.nih.gov/ntp/roc/content/profiles/asbestos.pdf> (accessed
                      1
September 16, 2019). The serious health risks caused by airborne asbestos fibers are now well
recognized. According to the National Institute for Occupational Safety and Health, “Persons
occupationally exposed to asbestos have developed several types of life-threatening diseases,
including asbestosis, lung cancer and mesothelioma.” Asbestos, The National Institute for
Occupational Safety and Health, Center for Disease Control and Prevention, available at
<https://www.cdc.gov/niosh/topics/asbestos/default.html> (accessed September 16, 2019).

          Federal law explicitly recognizes the occupational risks posed by airborne asbestos
fibers:

          Asbestos exposure in general industry occurs in a wide variety of industrial and
          commercial settings. Employees who manufacture asbestos-containing products
          may be exposed to asbestos fibers. Employees who repair and replace automotive
          brakes and clutches may be exposed to asbestos fibers. In addition, employees
          engaged in housekeeping activities in industrial facilities with asbestos product
          manufacturing operations, and in public and commercial buildings with installed
          asbestos containing materials may be exposed to asbestos fibers. [29 CFR
          1910.1001(j) (2016).]

The Occupational Health and Safety Administration (OSHA) has promulgated air quality
standards prohibiting exposure to “an airborne concentration of asbestos in excess of 0.1 fiber
per cubic centimeter of air as an eight (8)-hour time-weighted average.”              29 CFR
1910.1001(c)(1) (2016). If FCA had actually conducted air quality monitoring in the penthouse,
it was obligated to share the results with Stegall:

          The employer must, within 15 working days after the receipt of the results of any
          monitoring performed under this sections [sic], notify each affected employee of
          these results either individually in writing or by posting the results in an
          appropriate location that is accessible to affected employees. [29 CFR
          1910.1001(d)(7)(i) (2016).]



1
 Other health dangers caused by exposure to asbestos were known far earlier. See Olivo v
Owens-Illinois, Inc, 186 NJ 394, 404, 895 A2d 1143 (2006).


                                                 -2-
       Here are the “Worker Rights” described in an OSHA Fact Sheet regarding asbestos:2




These federal statutes and regulations reflect that airborne asbestos poses serious risks to
workers, and embody objective public policies intended to safeguard the physical and mental
health of workers potentially exposed to asbestos.

        Stegall’s evidence in opposition to summary disposition must be viewed against this
regulatory backdrop. I turn to a review of that evidence, primarily drawn from deposition
testimony and, along with all reasonable inferences, presented in the light most favorable to
Stegall. Craig v Oakwood Hosp, 471 Mich 67, 77; 684 NW2d 296 (2004).

        Stegall worked for both FCA and Brightwing, a staffing agency that provided Stegall to
FCA in 2013. In April 2016, Stegall became concerned about possible exposure to asbestos dust
when he and two colleagues were assigned to work in “the penthouse” of FCA’s SHAP. During
a meeting with two supervisors, Stegall complained that he and his two coworkers developed
respiratory symptoms (coughing with bloody mucous and itchy, watery eyes) after working in
the penthouse. On April 28, 2016, Stegall sent the following email to his immediate supervisor,
Jim Scarpace, Scarpace’s supervisor, Richard Spondike, first-shift IT supervisor Mitul Patel, and
a coworker:

               These are just three (3) IDF examples of what we have to contend with
       during the cleaning. This doesn’t even include the paths or walkthroughs areas
       (air exchange, heating and ventilations areas) on getting to the IDFs, which have
       the same issues. Mind you, the pictures attached are not the worst offenders, but
       the ones we could immediately take shots of.


2
 OSHA FactSheet, available at <https://www.osha.gov/Publications/OSHA3507.pdf> (accessed
September 16, 2019).


                                               -3-
              A lot of the pipes are damaged, material falling out above head, and
       dust/material around these areas.

               We would like to be provided with the necessary personal protective
       equipment on handling these areas where asbestos pipes are exposed and damage
       [sic]. And some type of guarantee these items will protect our health.

               These issues were brought up in the past[] because of sickness that has
       occurred amongst a few ICT workers cleaning IDFs within the upper TCF
       substations. We want to make sure our long term health isn’t being affected by
       the dust/particles within these areas.

               FYI: The picture of my shoes is from a 10-15 minute walk within these
       areas. It’s that bad. [Emphasis added.]

        Stegall attached photographs depicting overhead pipes and insulation. Some of the pipes
display a “DANGER” warning stating, “CONTAINS ASBESTOS FIBERS AVOID CREATING
DUST CANCER AND LUNG DISEASE HAZARD.” Based on the readily visible warning
combined with his respiratory symptoms and the dust collecting on his shoes, Stegall reached the
logical conclusion that the penthouse might be contaminated with airborne asbestos.

        Spondike forwarded Stegall’s photos (without the accompanying text) to an employee
health and safety manager, who in turn forwarded them to an outside consultant, John Pomroy.
Based only on the photos, Pomroy opined that there was nothing to worry about; although there
were asbestos-wrapped pipes in the penthouse, he explained, it appeared that only fiberglass-
wrapped pipes were damaged. This information was not shared with Stegall. Instead, Spondike
provided Stegall and his coworkers with respiratory masks to use when they worked in the
penthouse. Stegall was informed that FCA would obtain air quality testing to verify the safety of
that area.

        After receiving the protective gear and the reassurance that testing had been ordered,
Stegall went on vacation. When he returned on May 16, the masks were gone. Stegall asked for
replacements, but none were provided. He was given no explanation for this. Shortly after
Stegall’s renewed request for reassurance about possible asbestos exposure, Spondike had
decided to terminate Stegall’s FCA employment effective June 17. FCA had decided to
temporarily shut down production at the Sterling Heights site beginning in June. However, in
February, Spondike had informed a representative of ZeroChaos, a staffing agency, that he
wanted to retain Stegall; Spondike was aware of the impending shut down at the time of their
conversation.3 Before his termination, Stegall had been advised by Spondike that if employment
needs changed at SHAP, he would be transferred to a different plant. Stegall was never given
any reason for his termination, and no documentary evidence of record explains why FCA


3
   ZeroChaos offers “workforce solutions” to FCA, managing the process of hiring
“supplemental” employees. Stegall was employed by an agency called Brightwing, which
supplied his résumé to ZeroChaos. ZeroChaos helped place Stegall at FCA.


                                               -4-
released him from employment. Stegall was the only employee in his department whose
employment ended. And Spondike admitted that FCA hired someone to replace Stegall.

        During the week of June 13, Stegall asked Scarpace about the status of the air quality
testing. Scarpace indicated that he had not yet seen it. In response to Stegall’s persistent follow-
up questioning, Scarpace stated that he did not know when the testing results would be available.
At some time during that week, Stegall threatened to “go to OSHA.” Stegall was officially
released from employment with FCA on June 17. Stegall filed a discrimination complaint with
MiOSHA and against Brightwing on July 6. Brightwing terminated him on August 3.

        The majority rejects Stegall’s public policy/wrongful discharge claim for two reasons:
“there is no Michigan caselaw extending the public policy exception to discharges in retaliation
for internal reporting of alleged violations of the law,” and no facts support that FCA
“wrongfully terminated plaintiff in retaliation for his refusal to violate the law because here is no
evidence that anyone actually violated any law or regulation.” Respectfully, the majority has
misconstrued both the facts and the law.

                                      A. “Internal” Reporting

        The majority’s claim that no Michigan caselaw extends the public policy exception to
“internal reporting of alleged violations of the law” is simply incorrect. In Landin v
Healthsource Saginaw, Inc, 305 Mich App 519, 521-522; 854 NW2d 152 (2014), the plaintiff, a
licensed practical nurse, asserted that

       he was terminated because he reported negligence by a coworker, which
       negligence he believed directly led to the death of a patient, to a supervisor.
       Plaintiff alleged that after he reported the believed negligence, he was retaliated
       against by defendant and the retaliation ultimately culminated in his termination.
       In his complaint against defendant, plaintiff alleged wrongful discharge in
       violation of public policy.

A jury found in the plaintiff’s favor, and this Court affirmed. We held that the plaintiff could
premise his public policy claim on violations of Michigan’s Public Health Code, MCL 333.1101
et seq., explaining:

       In enacting MCL 333.20176a, the Legislature clearly expressed a desire to further
       that policy by prohibiting retaliation against an employee who reports
       malpractice. And the right to report alleged acts of negligence (malpractice) is
       consistent with and implicit in the purposes of the Public Health Code and its
       statutory regulations governing health care professionals. [Landin, 305 Mich App
       at 530.]

        Thus, the majority’s first reason for rejecting Stegall’s public policy claim is legally
incorrect, as caselaw does support that a claim made only internally may proceed. In Landin, the
plaintiff’s internal communication about medical malpractice gave rise to a public policy claim
because the Public Health Code is designed to protect the public from “incompetence, deception,
and fraud.” Id. Stegall’s expressions of concern about possible asbestos exposure and his


                                                -5-
demand for air quality testing are “consistent with and implicit in the purposes of” multiple
federal asbestos regulations. Id.

        Prohibiting a public policy claim because a complaint was only “internal” makes no
logical sense, either, because if Stegall had complained externally, he could not bring a public
policy case at all.

        It is well established that an aggrieved plaintiff may not bring a public policy claim for
wrongful discharge if the plaintiff has an actionable claim under the WPA, MCL 15.361 et seq.
McNeil-Marks v MidMich Med Ctr-Gratiot, 316 Mich App 1, 26; 891 NW2d 528 (2016). The
WPA provides a cause of action to employees who report violations or suspected violations of
the law to public bodies. MCL 15.362. A private company such as FCA is not a public body.
Logically, if Stegall reported FCA’s suspected violation of asbestos laws to an outside entity,
that entity would have been a public body. By making an “outside” complaint Stegall would
have gained a claim under the WPA, but lost a public policy cause of action. Therefore, it makes
no sense to forbid “internal” public policy claims, as once a claim is made externally, a
plaintiff’s public policy claim evaporates.

                                  B. An Actual Legal Violation

        Nor do I agree with the majority that Stegall’s claim fails because “there is no evidence
that anyone actually violated any law or regulation.” Whether a law was actually broken is
irrelevant to an action based on a public policy theory.

       Suchodolski, 412 Mich at 695-696, posits that a cause of action may be implied when an
employee fails or refuses to violate a law in the course of employment, or exercises “a right
conferred by a well-established legislative enactment.” Federal law, codified in 29 CFR
1910.1001(c) (1) (2016), establishes an employee’s right to work in a location free of airborne
asbestos in a concentration in excess of 0.1 fiber per cubic centimeter of air as an eight-hour time
weighted average. 29 CFR 1977.9(c) (2016) proclaims that workers should not be penalized for
complaining in good faith about asbestos exposure:

       Further, the salutary principles of the Act would be seriously undermined if
       employees were discouraged from lodging complaints about occupational safety
       and health matters with their employers. . . . Such complaints to employers, if
       made in good faith, therefore would be related to the Act, and an employee would
       be protected against discharge or discrimination caused by a complaint to the
       employer.

These regulations express a public policy protective of workers who complain or communicate
concern about the possible presence of asbestos in a workplace. They envision that an employer
will not retaliate when a worker seeks information or reassurance that a workplace is free from




                                                -6-
dangerous asbestos fibers. Whether a dangerous concentration of asbestos actually exists is
irrelevant.4

        In my view, Stegall has set forth a prima facie case under a public policy tort theory. His
conduct was consistent with having exercised his right to an asbestos-free environment.
Encouraging workers to report potential occupational health hazards without fear of discharge
furthers the public policy of protecting lives and health, regardless of whterh a dangerous level of
asbestos actually is found.

                       II. THE WPA CLAIM AGAINST BRIGHTWING

       Stegall was employed jointly by Brightwing and FCA. On June 18, a Brightwing
representative, Kerri Kacanowski, telephoned Stegall and informed him that his employment at
FCA had been terminated. Stegall told Kackanowski that he had complained about asbestos
contamination to FCA management. She made a note in his record memorializing their
conversation about asbestos.

       Kacanowski advised Stegall to update his résumé and that Brightwing would search for
another assignment for him. He mentioned MiOSHA to Kacanowski during the June 18
telephone conversations, and recounted his awareness that FCA planned to close SHAP. He also
informed Kacanowski that in April or May 2016, Spondike and Scarpace had informed him that
he would be reassigned to third shift at Sterling stamping.

        On July 6, 2016, Stegall filed a discrimination complaint with MiOSHA. Staff from
MiOSHA investigated plaintiff’s complaint and inspected SHAP. The inspection resulted in “no
citations.” In August, Stegall received paperwork from Brightwing indicating that his
employment with the agency was over. Kacanowski admitted that she was aware of Stegall’s
MiOSHA complaint and had sought additional information about it.

       The majority holds that Stegall’s WPA claim against Brightwing fails because Stegall
cannot demonstrate a causal connection between his report to MiOSHA and his termination from
Brightwing’s employment. According to the majority, Stegall produced “nothing more than
temporal proximity between his protected activity and his alleged discharge,” which is not
enough to establish a WPA claim.

       I take issue with the majority’s implied assertion that temporal proximity, standing alone,
cannot establish the causation element of a prima facie case. In Mickey v Zeidler Tool & Die Co,



4
   “Reporting a ‘suspected violation of a law’ is protected activity” under the WPA. Debano-
Griffin v Lake Co, 486 Mich 938; 782 NW2d 502 (2010) (emphasis added). Logically, the same
rule should apply to the public policy exception. “[P]ublic-policy claims are analogous to claims
made under § 2 of the [WPA], MCL 15.362, and . . . the WPA is analogous to antiretaliation
provisions of other employment-discrimination statutes.” Silberstein v Pro-Golf of America, Inc,
278 Mich App 446, 453; 750 NW2d 615 (2008).



                                                -7-
516 F3d 516, 525 (CA 6, 2008), the Sixth Circuit held that temporal proximity can stand alone in
certain cases:

       Where an adverse employment action occurs very close in time after an employer
       learns of a protected activity, such temporal proximity between the events is
       significant enough to constitute evidence of a causal connection for the purposes
       of satisfying a prima facie case of retaliation. But where some time elapses
       between when the employer learns of a protected activity and the subsequent
       adverse employment action, the employee must couple temporal proximity with
       other evidence of retaliatory conduct to establish causality.

               The reason for this distinction is simple: if an employer immediately
       retaliates against an employee upon learning of his protected activity, the
       employee would be unable to couple temporal proximity with any such other
       evidence of retaliation because the two actions happened consecutively, and little
       other than the protected activity could motivate the retaliation. Thus, employers
       who retaliate swiftly and immediately upon learning of protected activity would
       ironically have a stronger defense than those who delay in taking adverse
       retaliatory action. [Citation omitted.]

This Court has reached the same conclusion:

       Close timing between alleged protected activity and the termination of a
       plaintiff’s employment may establish the “causal connection” element of a
       plaintiff’s prima facie case of retaliation, and “[t]he proofs offered in support of
       the prima facie case may be sufficient to create a triable issue of fact that the
       employer’s stated reason is a pretext, as long as the evidence would enable a
       reasonable factfinder to infer that the employer’s decision had a discriminatory
       [here, retaliatory] basis.” [Taylor v Modern Engineering, Inc, 252 Mich App 655,
       661; 653 NW2d 625 (2002) (alterations in original), quoting Town v Mich Bell Tel
       Co, 455 Mich 688, 697; 568 NW2d 64 (1997).]

        Here, Stegall complained to MiOSHA on July 6, 2016, Brightwing received a copy of the
complaint on July 14, 2016, and on August 3, 2016, Brightwing communicated to Stegall that he
was no longer employed with the agency. Notably, nothing relevant to Stegall’s qualification for
continued employment occurred in between these events that could have supplied any cause for
Stegall’s termination. Under the circumstances presented in this case, a jury could reasonably
conclude that based on temporal proximity alone, Brightwing retaliated against Stegall’s filing of
a MiOSHA complaint.

        Additional evidence of record enhances Stegall’s causation argument. Stegall’s
employment record with Brightwing was entirely favorable.           It included a letter of
recommendation from a supervisor at FCA highly praising Stegall’s work and abilities (“Mr.
Stegall is an excellent team member and always puts the team’s goals and objectives as a high
priority. He works well with his coworkers and helps develop an environment of teamwork and
high team performance.”). Before Stegall made the MiOSHA complaint, Kacanowski had
promised that Brightwing would find him another job. And Brightwing presented no evidence

                                               -8-
that it released Stegall for any specific reason, or that he was unfit for future assignments. I
would hold that this circumstantial evidence, combined with the temporal proximity between the
complaint and the adverse employment action, more than suffices to create a jury question
regarding causation.



                                                           /s/ Elizabeth L. Gleicher




                                              -9-
