               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0237n.06

                                      Case No. 13-2324                             FILED
                                                                              Mar 31, 2015
                         UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


BUFFIE LYNN BURNS,                                )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )      ON APPEAL FROM THE UNITED
v.                                                )      STATES DISTRICT COURT FOR
                                                  )      THE WESTERN DISTRICT OF
MAHLE ENGINE COMPONENTS USA,                      )      MICHIGAN
INC.,                                             )
                                                  )
       Defendant-Appellee.                        )      OPINION
                                                  )


BEFORE: DAUGHTREY, MCKEAGUE, and DONALD, Circuit Judges.

       BERNICE B. DONALD, Circuit Judge. Buffie Lynn Burns appeals the district court’s

grant of summary judgment to Mahle Engine Components USA, Inc. (“Mahle”). Burns alleges

that the district court erred in concluding (1) that she failed to allege a prima facie case of

retaliation under Michigan’s Whistleblower Protection Act, Mich. Comp. Laws § 15.362, and (2)

that, even if Burns had established a prima facie retaliation claim, she still would have been

unable to demonstrate that Mahle’s legitimate non-discriminatory reasons for terminating her

employment were pretextual. Burns also claims that the district court erred in granting summary

judgment on her public policy claim that Mahle terminated her in violation of Michigan’s

common-law prohibition on firing at-will employees for refusing to break the law in the course

of their employment. We AFFIRM.
Case No. 13-2324
Burns v. MAHLE Engine Components USA, Inc.

                                               I.

       In November 2006, Burns began working as a chemical engineer at Dana Corporation’s

plant in St. John’s, Michigan. After Mahle purchased the St. John’s facility in March 2007,

Burns continued to work as a chemical engineer for Mahle until April 2011 when she became

Mahle’s Environmental Health & Safety Coordinator for the St. John’s plant. In this position,

Burns reported to Rick Aubry, the human resources manager. Although plant manager Bruce

Fandel had the final say over health and safety matters, Burns was “responsible for all

environmentally related activities” at the site, which included “identifying compliance

requirements associated with production processes, obtaining necessary environmental permits,

preparing and submitting required environmental compliance reports, and conducting both

formal and informal inspections to ensure proper compliance status.” PageID 292, 602. Burns

indisputably was an at-will employee. E.g. PageID 210, 289.

       During a routine Michigan Department of Environmental Quality (“MDEQ”) inspection

in February 2012, Mahle learned of rules requiring a permit for the 1000 gallon anhydrous

ammonia storage tank that had been at its St. John’s facility since 1998. 312-17. Burns concedes

that she should have been aware of the permit requirement before the inspection.            Nick

Zabrodsky of MDEQ’s Air Quality Division Permit Section requested that Mahle submit a

permit application during the one to six months that it would take him to complete his report but

explained that if the application was not submitted by the time his report was finished, then he

would simply add a submission deadline to the report.

       Burns quickly completed a permit application, which she submitted to MDEQ on

February 27, 2012. Among other things, the application requested information about the tank’s

proximity to other structures, including the “nearest residence, [or any] private or public


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Burns v. MAHLE Engine Components USA, Inc.

assembly.” PageID 639. In this initial application, Burns “guestimate[d]” that the tank was 100

feet away from the nearest public or private assembly, a Masonic Temple across the street from

the plant. PageID 233. When Zabrodsky informed Burns that the tank did not meet the

minimum 300-foot distance from the nearest public or private assembly, Burns explained that

she had only estimated the distance and that she would resubmit the application after she actually

measured.

       When Burns and David Knodel—the engineering manager for Allied Ring, the company

that used the anhydrous ammonia as a part of a joint venture with Mahle—actually measured,

they found that the Masonic temple was more than 300 feet away from the anhydrous ammonia

tank. Id. Burns then began to wonder whether the Mahle facility itself, portions of which were

within 300 feet of the tank, could be considered a private or public assembly. Burns contacted

Zabrodsky for a definition of “private or public assembly,” but he explained that he could not

find one. PageID 237-39. Burns did not discuss the issue with Mahle’s company counsel but

did speak to a private attorney who recommended that she note on the revised application that

“public or private assembly” lacked a definition. PageID 574-79.

       Following this advice, in her updated permit application, Burns added a handwritten

comment to her response regarding the distance to certain structures, explaining, “[a]s no clear

definition has been given of ‘private or public assembly’ the attached picture shows the locations

of nearest residence, factory, and lodge. No identified schools, apartments or other institutions.”

PageID 312. Burns also included an aerial photograph that listed the distance between the tank

and other structures. On March 29, 2012, Burns emailed the revised permit application to Aubry

and Knodel for their review. Knodel recommended that she submit the application without the

additional comment or aerial photo but that she keep them on file should MDEQ later require


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Case No. 13-2324
Burns v. MAHLE Engine Components USA, Inc.

them. Later that day, Aubry met with Burns and explained that he had concluded her additions

were unnecessary and might appear as hedging since all of the information was redundant.

Aubry indicated that Burns could still attach the photo but asked Burns to remove her note and

then submit the permit application.

       Because he knew that Burns was concerned about her personal liability, Aubry put his

instructions in writing and emailed them to Burns the next day. Burns emailed back that she was

still uncomfortable playing a “guessing game” with something as dangerous as ammonia and that

she would not sign the permit without the additional information. PageID 327. Aubry sent

Burns a second email stating:

               We all agree that ammonia can be dangerous. And I think you agree that
       we have more than adequate safeguards in place to minimize if not eliminate the
       risk. We disagree that this is playing a guessing game. You acknowledged in
       your preliminary permit and in our discussion yesterday that [M]DEQ’s
       regulations are unclear as to the definition of private and public assemblies.

               Why do you feel compelled to try and define this for [M]DEQ?

               Please delete the asterisk and the asterisk reference before you submit the
       permit today. If you’re unclear as to what I’m requesting, please call me.

PageID 326. Burns still refused, explaining “[s]orry, but I am going to seek outside council [sic]

and find out what my liability is before signing that permit.” PageID 325. Burns also copied

Plant Manager Fandel on this email and explained that he was authorized to sign and submit the

permit application were he so inclined.

       Aubry met with Burns again on April 4, 2012 to explain why he wanted to remove her

addition and to ask Burns to delete the comment and submit the application. When Burns

declined, Aubry summoned another HR representative to serve as a witness.            Aubry then

explained that if Burns still refused to sign the application, this refusal would constitute

insubordination and result in her indefinite suspension. Burns refused to sign or submit the

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Case No. 13-2324
Burns v. MAHLE Engine Components USA, Inc.

permit. Aubry then suspended Burns for gross insubordination. After she was suspended, Burns

called Ralph Williams—an Environmental Health & Safety Coordinator at Mahle’s facility in

Morristown, Tennessee. Burns claims she told Williams, among other things, that she was going

to call Michigan’s Occupation Safety and Health Administration (“MIOSHA”). Williams does

not recall whether Burns told him that she planned to call MIOSHA. Burns claims that she

contacted MIOSHA on April 4, after she hung up with Williams.

       After suspending Burns, Aubry discussed Burns’s misconduct with Fandel and Dennis

Wheeler, Mahle’s Director of Human Resources for North America. They agreed that Burns’s

conduct constituted gross insubordination, which, under Mahle’s employment policies, is a

ground for termination. On April 5, 2012, Mahle terminated Burns. Williams played no part in

the decision to terminate Burns; moreover, Williams did not tell Aubry, Fandel, or Wheeler that

Burns had said she intended to contact MIOSHA. On the evening of April 5, Burns sent

MIOSHA an email chain related to the permit application. Burns continued to pursue her

MIOSHA complaint, alleging that she was wrongfully terminated for refusing to sign the permit

application in violation of Michigan’s Occupational Safety and Health Act, until October 17,

2012, when MIOSHA determined that Burns’s allegations “could not be sustained” and

dismissed her complaint. PageID 449-56.

       On April 11, 2012, MDEQ denied the original permit application that Burns had

submitted. After Burns’s termination, Mahle submitted the revised permit application without

either Burns’s comment or the aerial photograph. PageID 204, 306, 471-482. On July 12, 2012,

MDEQ granted the permit, noting that the “application has been determined to be complete . . . .”

PageID 471.




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Case No. 13-2324
Burns v. MAHLE Engine Components USA, Inc.

       On June 28, 2012, Burns filed this diversity suit in the United States District Court for the

Western District of Michigan, alleging (1) that Mahle violated Michigan’s Whistleblower

Protection Act by terminating her because she contacted MIOSHA to report that she had been

suspended for refusing to sign the permit application and (2) that Mahle violated Michigan

public policy by firing her for refusing to sign the permit application.         Mahle moved for

summary judgment on both of Burns’s claims on May 15, 2013. The district court granted

Mahle’s motion on September 13, 2013. Burns timely appealed.

                                                II.

       We review de novo a district court's grant of summary judgment using the Matsushita-

Anderson-Celotex standard. Back v. Nestlé USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012).

Summary judgment is proper where there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). We view facts in the

record and reasonable inferences that can be drawn from those facts in the light most favorable to

the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986). We do not weigh evidence, assess credibility of witnesses, or determine the truth of

matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

       The party requesting summary judgment bears an initial burden of demonstrating that no

genuine issue of material fact exists, which it must discharge by producing evidence to

demonstrate the absence of a genuine issue of material fact or “by showing . . . that there is an

absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S.

317, 323-325 (1986) (internal quotation marks omitted). If the moving party satisfies this

burden, the nonmoving party may not “rest upon its . . . pleadings, but rather must set forth

specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578


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Burns v. MAHLE Engine Components USA, Inc.

F.3d 351, 374 (6th Cir. 2009) (citing Fed. R. Civ. P. 56; Matsushita, 475 U.S. at 586). A party

asserting a genuine issue of material fact must support this argument either by “citing to

particular parts of materials in the record” or by “showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Evidence that is “merely

colorable” or “not significantly probative” is insufficient. Anderson, 477 U.S. at 248-52. If there

are no disputed material facts, we review de novo whether the district court properly applied the

substantive law. Farhat v. Jopke, 370 F.3d 580, 588 (6th Cir. 2003).

                                               III.

       Burns contends that the district court erred in dismissing her Michigan Whistleblower

Protection Act (“WPA”) claim because she had, in fact, furnished sufficient evidence to establish

a causal connection between her contacting MIOSHA and her termination. She also asserts that

the district court erred in dismissing her common-law claim because genuine issues of material

fact exist regarding her allegation that her discharge contravened Michigan public policy.

                                                A.

       The WPA provides that:

       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.

Mich. Comp. Laws § 15.362. To prevail on a WPA claim, a plaintiff must “show by clear and

convincing evidence that he or she or a person acting on his or her behalf was about to report,


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Burns v. MAHLE Engine Components USA, Inc.

verbally or in writing, a violation or a suspected violation of a law of this state, a political

subdivision of this state, or the United States, to a public body.” Mich. Comp. Laws § 15.363(4).

“The WPA, as a remedial statute, is to be liberally construed to favor the persons the Legislature

intended to benefit.” Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210, 215 (Mich.

1998).

          We analyze claims under Michigan’s WPA using the burden-shifting framework for

retaliatory discharge claims under the Elliot Larsen Civil Rights Act. See Taylor v. Modern

Eng’g, Inc., 653 N.W.2d 625, 628 (Mich. Ct. App. 2002); accord Pethers v. Metro Lift Propane,

No. 09-CV-10516, 2010 WL 3023887, at *6 (E.D. Mich., July 29, 2010). Under this framework,

the plaintiff first must establish a prima facie case under the WPA. E.g. West v. Gen. Motors

Corp., 665 N.W.2d 468, 471-72 (Mich. 2003). Once a plaintiff has made this showing, the

burden of production shifts to the defendant to articulate a legitimate, non-retaliatory explanation

for its adverse employment action. E.g. Roulston v. Tendercare (Michigan), Inc., 608 N.W.2d

525, 530 (Mich. Ct. App. 2000). If the defendant proffers a legitimate, non-retaliatory reason,

the plaintiff then has the opportunity to prove that the defendant’s purported legitimate reason

was merely pretext for the discharge. Taylor, 653 N.W.2d at 628 (citing Roulston, 608 N.W.2d

at 530).

          Burns argues that the district court erred in holding that she could not establish a prima

facie case. To make a prima facie WPA case, Burns must show: (1) that she was engaged in a

protected activity under the WPA; (2) that she was discriminated against or discharged; and (3)

that there is a causal connection between the protected activity and the adverse employment

action.    West, 665 N.W.2d at 471-72.        WPA-protected activities include both reporting a

violation of a law, regulation, or rule to a public body and being about to report such a violation.


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Burns v. MAHLE Engine Components USA, Inc.

See Chandler, 572 N.W.2d at 212. Neither party disputes that Burns engaged in a protected

activity under the WPA. Similarly, the parties agree that Mahle’s terminating Burns satisfies the

second prong. Burns and Mahle, however, disagree about whether Burns can establish a causal

connection between her either calling or being about to call MIOSHA and her termination.

       The district court concluded that “Burns’s claim falters on the third prong.” PageID 739.

The district court reasoned that because the three people who decided to terminate Burns’s

employment did not know of her protected activity, their decision could not have been motivated

by her protected activity.   Id.   On appeal, Burns contends that she can establish a causal

connection between her protected activity and her termination by establishing that Mahle had

notice that she was going to call MIOSHA. To support her argument, Burns relies on her telling

Williams that she intended to call MIOSHA, coupled with the “suspicious timing” of her threat

to contact MIOSHA one day and her termination the next.

       For there to be causal connection between an adverse employment decision and a

protected activity, the relevant decision-maker must have actual knowledge of the protected

activity before making the decision. See Kaufman & Payton, P.C. v. Nikkila, 503 N.W.2d 728,

732-33 (Mich. Ct. App. 1993); see also Jennings v. Cnty. of Washtenaw, 475 F. Supp. 2d 692,

713 (E.D. Mich. 2007) (explaining that an about-to-report WPA claim “requires evidence

showing that, before firing [the plaintiff], the person responsible for her termination was aware

that she was about to make a report to a public body”). Thus, for Burns to establish causation,

she must demonstrate that at least one of the people responsible for her termination was aware of

her plan to contact MIOSHA.

       Although Burns may have told Williams about her plan to contact MIOSHA, Williams

had nothing to do with the decision to terminate Burns. Burns does not appear to contest that


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Burns v. MAHLE Engine Components USA, Inc.

Aubry, Fandel, and Wheeler, not Williams, were responsible for her termination. Moreover, the

record is devoid of any evidence that Williams notified Aubry, Fandel, or Wheeler of Burns’s

protected activity. Nothing in the depositions of Aubry, Fandel, Wheeler, or Williams indicate

that Williams told any of the decision-makers that Burns planned to contact MIOSHA, and even

Burns concedes that she does not have any information regarding whether Williams notified

Aubry, Fandel, or Wheeler.

       To circumvent the fact that Aubry, Fandel, and Wheeler did not know about her protected

conduct, Burns relies on dicta in an unpublished Michigan Court of Appeals decision, Koller v.

Pontiac Osteopathic Hosp., No. 229630, 2002 WL 1040339 (Mich. Ct. App. May 21, 2002) (per

curiam), for the proposition that Michigan law imputes constructive knowledge of a protected

activity to a decision-maker when an employee notifies any management-level employee that she

is “about to report” to a public body. As the district court correctly noted, however, Burns’s

reliance on Koller is misplaced. As a constructive discharge, hostile work environment case,

Koller is distinguishable because it lacks decision-makers analogous to Aubry, Fandel, and

Wheeler. Koller, 2002 WL 1040339, at *3. Moreover, even if it were on point, the ultimate

holding in Koller—that the plaintiff failed to demonstrate that she engaged in a protected activity

and also failed to establish causation—runs counter to Burns’s own arguments. See id. at *3-*4.

       Because none of the people who made the decision to terminate Burns was aware of her

protected activity, that activity could not have been the impetus for their decision to terminate

her.   See West, 665 N.W.2d at 471-72; Kaufman & Payton PC, 503 N.W.2d at 732-33.




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Burns v. MAHLE Engine Components USA, Inc.

Accordingly, the district court did not err in finding that Burns failed to demonstrate causation

and thus failed to establish a prima facie claim under the WPA.1

                                                        B.

        Burns also argues that the district court erred in granting Mahle summary judgment on

her claim that her discharge violated public policy. Because Burns was an at-will employee,

Mahle could terminate her employment at any time or for any reason, so long as that termination

was not contrary to public policy.              In Suchodolski v. Michigan Consolidated Gas Co.,

316 N.W. 2d 710 (Mich. 1982), the Michigan Supreme Court noted three public policy

exceptions to an employer’s right to discharge an at-will employee, where: (1) the employee is

discharged in violation of an explicit legislative statement prohibiting discharge of employees

who act in accordance with a statutory right or duty; (2) the employee is discharged for the

failure or refusal to violate the law in the course of employment; or (3) the employee is

discharged for exercising a right conferred by a well-established legislative enactment. E.g.

McNeil v. Charlevoix Cnty., 772 N.W. 2d 18, 24 (Mich. 2009) (citing Suchodolski, 316 N.W.2d

at 711–12). Burns invokes the second exception, arguing that Mahle fired her when she refused

to sign the permit application without the additional handwritten comment because doing so

would render the application less than true, accurate, and complete and thereby violate

Michigan’s Occupational Health and Safety Act, Mich. Comp. Laws §§ 408.1001-1094, and

Natural Resources Protection Act, Mich. Comp. Laws §§ 324.5501-324.5542.

        The record does not support Burns’s claim that Aubry’s request to remove her

handwritten footnote was a request to violate the law. Burns concedes that “all the information”



        1
          Based on this holding, we need not determine whether the district court erred in concluding that, even if
Burns could make a prima facie WPA case, she could not demonstrate that Mahle’s stated legitimate, non-retaliatory
reason for her discharge—her gross insubordination—was pretextual.

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Burns v. MAHLE Engine Components USA, Inc.

in her written addition to the application to which Aubry objected “would already be somewhere

else” in the application form. PageID 260. Thus, removing the additional comment would not

have rendered the application inaccurate or incomplete—a fact validated by MIOSHA’s deeming

the application complete and approving it without either the additional comment or the aerial

photograph that Aubry had permitted Burns to attach. Moreover, Burns herself had already

signed and submitted an earlier version of the permit application without the additional

information. Indeed, had Burns actually measured the distances before submitting the first

application, rather than “guestimat[ing],” the initial application—which but for the distance

measurements was identical to the revised application—would have been approved and the entire

confrontation regarding Burns’s desired additions would have been avoided. Because there is no

basis to conclude that Mahle’s instructions to submit the permit application without the

additional note was an illegal request, the district court did not err in ruling that Mahle did not

ask Burns to violate a law or terminate her employment for refusing to do so.

                                               IV.

       For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment

to Mahle on all of Burns’s claims.




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