The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Himmel v. Ford Motor Co. No. 01-4277
ELECTRONIC CITATION: 2003 FED App. 0321P (6th Cir.)
File Name: 03a0321p.06 BAKER & HOSTETLER, Cincinnati, Ohio, for Appellee.
ON BRIEF: Robert J. Hollingsworth, Paul R. Moran, CORS
& BASSETT, Cincinnati, Ohio, for Appellant. David G.
UNITED STATES COURT OF APPEALS Holcombe, Amy L. Garrard, BAKER & HOSTETLER,
Cincinnati, Ohio, for Appellee.
FOR THE SIXTH CIRCUIT
_________________ MOORE, J., delivered the opinion of the court, in which
KATZ, D. J., joined. ROGERS, J. (pp. 16-23), delivered a
STEPHEN B. HIMMEL, X separate dissenting opinion.
Plaintiff-Appellant, -
- _________________
- No. 01-4277
v. - OPINION
> _________________
,
FORD MOTOR COMPANY , - KAREN NELSON MOORE, Circuit Judge. Plaintiff-
Defendant-Appellee. - Appellant Stephen B. Himmel (“Himmel”) appeals the district
N court’s grant of summary judgment to Defendant-Appellee
Appeal from the United States District Court Ford Motor Company (“Ford”). Ford terminated Himmel’s
for the Southern District of Ohio at Cincinnati. employment as the Supervisor of Labor Relations, Hourly
No. 99-00851—Sandra S. Beckwith, District Judge. Personnel, and Safety in October 1997. According to
Himmel, prior to his termination, he had complained about
Argued: April 30, 2003 the labor practices that violated Section 302 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. §186,
Decided and Filed: September 8, 2003 alleging: (1) Ford improperly agreed with the United Auto
Workers (“UAW”) that ten percent of its hires would be
Before: MOORE and ROGERS, Circuit Judges; KATZ, referrals from UAW officials; (2) Himmel was forced by Ford
District Judge.* to hire a referral from the UAW’s National Ford Department;
and (3) Ford improperly settled two grievances with awards
_________________ of back pay. Himmel filed suit against Ford, alleging that he
was wrongfully terminated in retaliation for his complaints
COUNSEL and that such termination violated the public policy of Ohio
as expressed in Section 302 of the LMRA. The district court
ARGUED: Robert J. Hollingsworth, CORS & BASSETT, granted Ford’s motion for summary judgment, reasoning that
Cincinnati, Ohio, for Appellant. David G. Holcombe, Himmel’s discharge would not jeopardize Ohio public policy
because Himmel had both participated in Ford’s violations
and committed his own independent violations of the LMRA.
*
Himmel filed a timely notice of appeal.
The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
No. 01-4277 Himmel v. Ford Motor Co. 3 4 Himmel v. Ford Motor Co. No. 01-4277
Because the illegal conduct of an employee does not pressure. Himmel maintains that he complained about this
automatically bar his action for a wrongful discharge in ten-percent policy to his superiors on numerous occasions,
violation of public policy under Ohio law, we REVERSE the although the content and time of these complaints is unclear.
district court’s judgment and REMAND for further
proceedings consistent with this opinion. In September 1996, Ford ordered Sharonville to hire a
National Ford Department referral after Himmel had
I. FACTUAL AND PROCEDURAL HISTORY expressly declined to hire the referral and filled all available
positions with other hires. When three journeyman electrician
Beginning in 1977, Himmel was employed at Ford’s positions became available in June, Himmel opted to promote
Sharonville, Ohio, transmission plant (“Sharonville”), first as three qualified employees already working at Sharonville
a Labor Relations Specialist and then as Supervisor of Labor rather than to hire Forste, a National Ford Department
Relations, Hourly Personnel, and Safety. In his capacity as a referral. The National Ford Department informed Himmel
supervisor, Himmel was responsible for all matters involving that they considered his hiring decision “a slap in the face.”
hourly workers. Because the UAW represented Ford’s hourly Joint Appendix (“J.A.”) at 135-36. Himmel had promoted the
personnel at Sharonville, Himmel served as Ford’s three Sharonville employees without first requiring their
representative to the Union and was responsible for the daily completion of a skilled-trades test, and the National Ford
administration of the collective bargaining agreements Department threatened to make pre-hiring testing an issue at
between Ford and the UAW. Ford’s upcoming national negotiations with the UAW unless
Sharonville found a way to hire Forste. Although there were
According to Himmel, during his tenure as a supervisor, he no open positions remaining at Sharonville, Ford’s Powertrain
complained to Ford about Ford’s improper favoritism to Operations division decided to hire Forste.1 Himmel
UAW officials. Specifically, Himmel maintains that he complained to his Powertrain Operations supervisors about
objected to three instances of Ford’s alleged improper the forced hire and filed a written complaint with Ford’s
conduct: (1) Ford’s agreement with the UAW that ten percent Office of General Counsel.2 In spite of Himmel’s complaints,
of its nationwide hiring would be referrals from UAW Ford ordered Sharonville to hire Forste, and Himmel
officials; (2) Ford’s decision to hire Richard Forste (“Forste”) complied with the order.
after Himmel refused to give priority status to Forste as a
referral from the UAW’s National Ford Department; and While Ford was deciding whether to hire Forste, two
(3) Ford’s handling of the settlement of an employee journeymen electricians at a nearby Ford plant asked to be
grievance. transferred to Sharonville plant. The electricians, Frank
According to Himmel, Ford has long agreed that ten
percent of its national hiring would be comprised of referrals 1
Forste was not a UAW member and d id not submit an employment
from individual UAW officials. The UAW’s National Ford app lication, interview for the po sition, or take a skilled-trad es test.
Department gives referrals to Ford’s World Headquarters,
which in turn passes the reference along to individual plants. 2
Himmel did not specifically allege in his complaints that Fo rd’s
Ford forces its plants to give priority status to these referrals, conduct was illegal, instead complaining that the National Ford
according to Himmel, by refusing to support any plant that Department had no standing to file a grievance and that the National Ford
refuses to do so when that plant is the object of Union Department had no good reasons to oppose his hires — three UAW
members — when its own referral was not a UAW member.
No. 01-4277 Himmel v. Ford Motor Co. 5 6 Himmel v. Ford Motor Co. No. 01-4277
Kuykendall (“Kuykendall”) and Ruth Jackson (“Jackson”) representatives.3 According to Ford, it concluded that
filed grievances against Ford through the UAW in October Himmel had committed seven separate violations of Ford
1996. According to Kuykendall and Jackson, the collective policy which could have subjected Ford to criminal and/or
bargaining agreements between Ford and the UAW required civil liability. Ford decided that discharge was the
Sharonville to prefer Ford employees over non-Ford appropriate penalty and terminated Himmel’s employment in
employees applying for an open electrician position. Jackson October 1997.
also filed a grievance against Ford and the UAW with the
National Labor Relations Board (“NLRB”) in December Himmel filed an action against Ford in October 1999,
1996. When Ford finally transferred Kuykendall and Jackson alleging a single count of wrongful discharge based on Ohio’s
to Sharonville in February 1997, they continued to dispute the public policy exception to the employment-at-will doctrine.
issue of back pay. In June 1997, Ford agreed to pay both Himmel argues that Ford’s asserted grounds for his discharge
Kuykendall and Jackson for 420 hours of back pay, the were pretextual and maintains that the promotions he gave
number of hours that Forste had worked between the date of were legitimate and previously approved by Ford labor
his hire and the day before Kuykendall and Jackson were officials. According to Himmel, Ford actually terminated him
transferred to Sharonville. in retaliation for his complaints about Ford’s conduct in
violation of Section 302 of the LMRA, which prohibits
Himmel alleges that, upon learning of the settlement, he employers and their agents from providing “any . . . thing of
immediately complained to his boss that “it ‘stinks’ and is value” to a union or union official. 29 U.S.C. § 186(a).
‘illegal.’” J.A. at 176 (Himmel Aff.). Moreover, a few weeks Himmel maintains that Ford’s violations implicated Ohio
later, Himmel informed a Powertrain Operations official that public policy and therefore permitted his wrongful discharge
the settlement violated “federal law” when she telephoned action.
him to ask whether he had issued the settlement payment.
According to Himmel, Ford had agreed prior to the settlement The district court granted Ford’s motion for summary
that only Jackson, the more senior employee who would have judgment, concluding that Himmel’s recovery for wrongful
received Forste’s position, had standing to grieve Ford’s discharge was barred by Himmel’s participation in Ford’s
decision to hire a non-Ford-employee applicant at violations of Section 302 and by his own violations of Section
Sharonville. According to Himmel, Kuykendall was not 302. Himmel filed a timely notice of appeal.
entitled to a remedy, and likely received one only because he
was married to the niece of the National Ford Department II. ANALYSIS
official who negotiated the settlement. Moreover, Himmel
maintained that under the terms of the labor contract the back A. Standard of Review
pay award should have extended back only to the UAW’s
latest refusal of Ford’s settlement offer, not to Forste’s start We review the district court’s grant of summary judgment
date. de novo. Equitable Life Assurance Soc’y of the U.S. v. Poe,
143 F.3d 1013, 1015 (6th Cir. 1998). Summary judgment is
A few days after Himmel initially complained about the
impropriety of the Kuykendall settlement, Ford began 3
investigating Himmel to determine whether he had Although the parties discuss at length the facts surroun ding F ord’s
dec ision to terminate Himmel, these facts are not dispositive to our
improperly promoted UAW collective bargaining resolution of the case.
No. 01-4277 Himmel v. Ford Motor Co. 7 8 Himmel v. Ford Motor Co. No. 01-4277
appropriate “if the pleadings, depositions, answers to that “public policy warrants an exception to the employment-
interrogatories, and admissions on file, together with the at-will doctrine when an employee is discharged or
affidavits, if any, show that there is no genuine issue as to any disciplined for a reason which is prohibited by statute.” Id. at
material fact.” Fed. R. Civ. P. 56(c). A dispute over a 986. The Ohio Supreme Court gradually expanded the scope
material fact is not considered “genuine” unless “a reasonable of Greeley actions, ultimately articulating four elements that
jury could return a verdict for the nonmoving party.” a plaintiff must prove to establish a public-policy claim:
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(quotation omitted). In deciding whether summary judgment 1. That [a] clear public policy existed and was
was appropriate, we view all evidence in the light most manifested in a state or federal constitution, statute
favorable to the nonmoving party. Matsushita Elec. Indus. or administrative regulation, or in the common law
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). (the clarity element).
In reviewing a grant of summary judgment, we employ the 2. That dismissing employees under circumstances like
same legal standard that the district court applied. Equitable those involved in the plaintiff’s dismissal would
Life Assurance Soc’y, 143 F.3d at 1015. Because we are jeopardize the public policy (the jeopardy element).
sitting in diversity,4 see 28 U.S.C. § 1332, we apply the law,
including the choice of law rules, of the forum state. Hayes 3. The plaintiff’s dismissal was motivated by conduct
v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. related to the public policy (the causation element).
2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941)). Here the parties agree that the substantive 4. The employer lacked overriding legitimate business
law of Ohio governs. Because the question at issue has not justification for the dismissal (the overriding
yet been resolved by the Ohio courts, we must attempt to justification element).
predict what the Ohio Supreme Court would do if confronted
with the same question. Stalbosky v. Belew, 205 F.3d 890, Collins v. Rizkana, 652 N.E.2d 653, 657-58 (Ohio 1995)
893-94 (6th Cir. 2000). (quoting Henry H. Perritt, Jr., The Future of Wrongful
Dismissal Claims: Where Does Employer Self Interest Lie?,
B. Greeley Claims: Ohio’s Public Policy Exception to 58 U. Cin. L. Rev. 397, 398-99 (1989)).
Employment at Will
To decide whether summary judgment for Ford was
Ohio refers to claims of wrongful discharge in violation of improper, we must consider whether Himmel has established
public policy as Greeley claims. See Greeley v. Miami Valley a genuine issue of material fact as to each element of his
Maint. Contractors, Inc., 551 N.E.2d 981 (Ohio 1990), Greeley claim. As an initial matter, we note that the issue of
overruled in part by Tulloh v. Goodyear Atomic Corp., 584 clarity has been resolved in Himmel’s favor; Ford concedes
N.E.2d 729 (Ohio 1992). In Greeley, Ohio first recognized on appeal “that Section 302 of the LMRA embodies a
sufficiently clear public policy to serve as the foundation for
a wrongful discharge claim.” Ford Br. at 33-34. Moreover,
it is clear that Himmel has established a genuine issue of
4 material fact as to both causation and overriding justification.
Dive rsity exists between H imme l, an Ohio citizen, and Ford , a
business that is incorporated in and has its principal p lace of business in See Collins, 652 N.E.2d at 658 (explaining that, under Ohio
states other than Ohio.
No. 01-4277 Himmel v. Ford Motor Co. 9 10 Himmel v. Ford Motor Co. No. 01-4277
law, these two Greeley elements are questions of fact for the involving Greeley claims, we believe that Perritt’s framework
jury). With respect to causation, Ford argues that Himmel of jeopardy analysis provides guidance in our analysis of the
was terminated for violating Ford company policy and the facts at hand.
policy of the LMRA, but Himmel has presented contrary
evidence suggesting his termination was motivated by Section 302 of the LMRA provides that “[i]t shall be
Himmel’s complaints about Ford’s violations of the public unlawful for any employer . . . to pay, lend, or deliver, or
policy of the LMRA. Similarly, Ford has introduced agree to pay, lend, or deliver, any money or other thing of
evidence that Himmel engaged in wrongful conduct which value . . . to any labor organization, or any officer or
amounted to a legitimate overriding business justification for employee thereof, which represents, seeks to represent, or
dismissing Himmel. Himmel counters this argument with would admit to membership, any of the employees of such
evidence that his conduct was in accord with company policy employer who are employed in an industry affecting
and the law. In light of the parties’ disputes about the facts commerce.” 29 U.S.C. § 186(a). When Congress enacted
and how to interpret them, we conclude that Himmel Section 302, it was “concerned with corruption of collective
established a genuine issue of material fact as to the causation bargaining through bribery of employee representatives by
and overriding justification elements of his Greeley claim. employers, with extortion by employee representatives, and
Therefore, our inquiry will focus on the jeopardy element of with the possible abuse by union officers of the power which
Himmel’s Greeley claim. they might achieve if welfare funds were left to their sole
control.” Arroyo v. United States, 359 U.S. 419, 425-26
1. Jeopardizing Ohio’s Public Policy (1959) (footnotes omitted); see Turner v. Local Union No.
302, Int’l Bhd. of Teamsters, 604 F.2d 1219, 1227 (9th Cir.
The Ohio Supreme Court characterizes the jeopardy inquiry 1979) (“The dominant purpose of § 302 is to prevent
as a question of law for the court. Id. Therefore, for employers from tampering with the loyalty of union officials
summary judgment purposes, we must determine whether and to prevent union officials from extorting tribute from
dismissing employees under the circumstances of Himmel’s employers.”). In short, the public policy of Section 302 can
dismissal would jeopardize the clear pubic policy of Section be described as preventing corruption in union-employer
302. Ohio has yet to adopt a clear analytical framework for relationships.
analyzing jeopardy, and discussions of this element by Ohio
courts are often quite brief. However, Henry H. Perritt, Jr., Corruption in union-employer relationships will often not
who originally articulated the analytical framework that was come to light in the absence of reporting by an insider in the
subsequently adopted by the Ohio Supreme Court for Greeley process. Therefore, to achieve the policy goal of Section 302,
claims, has identified three steps of jeopardy analysis: employees must be in a position where they are able to
(1) determine “what kind of conduct is necessary to further articulate their observations and suspicions of such
the public policy” at issue; (2) decide whether the employee’s corruption. See, e.g., Kulch v. Structural Fibers, Inc., 677
actual conduct fell within the scope of conduct protected by N.E.2d 308, 324 (Ohio 1997) (suggesting that Ohio needs
this policy; and (3) consider whether employees would be employees to report legitimate health and safety concerns to
discouraged from engaging in similar future conduct by the further Ohio’s policy favoring workplace safety), abrogation
threat of dismissal. Perritt, supra, at 408. Given the Ohio on other grounds recognized by Krickler v. Brooklyn, 776
Supreme Court’s reliance on Professor Perritt’s articulation of N.E.2d 119 (Ohio Ct. App. 8th Dist. 2002); Jamison v.
the jeopardy element in Collins and subsequent cases American Showa, Inc., 99CAE-03-014, 2000 WL 1404, at
No. 01-4277 Himmel v. Ford Motor Co. 11 12 Himmel v. Ford Motor Co. No. 01-4277
*11 (Ohio Ct. App. 5th Dist. Dec. 16, 1999) (noting that apparently inappropriate conduct before doing adequate
employee reporting of an employer’s environmental research.
violations benefits “the health and safety of an entire
community”). Reporting is essential to furthering the policy Viewing the facts in the light most favorable to Himmel,
goals of a statutory provision like Section 302 because one we conclude that Himmel’s complaints about the ten-percent
can imagine any number of circumstances where corruption policy, the hiring of Forste, and the Kuykendall settlement
would likely go unnoticed in the absence of employee were conduct furthering the policy of Section 302.5 These
complaints. complaints all implicate Ford’s relationship with the UAW
and involve Ford’s alleged preferential treatment of UAW
Having determined that employee complaints of conduct referrals and employees with UAW connections. Because all
thought to violate Section 302 are essential to furthering the three instances of Ford’s alleged misconduct implicate the
purpose of that provision, we proceed to evaluate whether potential corruption of union-employer relationships,
Himmel’s conduct fell within the scope of employee Himmel’s objections constitute conduct within the scope of
complaints protected by the policy of preventing corruption Section 302.
in union-employer relationships. No Ohio law suggests that
Himmel needed to invoke a specific statute as a basis for his Finally, we recognize that permitting Ford to dismiss
complaints of wrongdoing at the time he complained to Ford. Himmel in retaliation for Himmel’s complaints about Ford’s
Moreover, no Ohio law suggests that, at the time of his potential corruption of union-employer relations would
complaint, an employee must be certain that the seemingly discourage other Ford employees from complaining about
inappropriate conduct is actually illegal. See Fox v. City of future conduct by Ford that threatened further to corrupt those
Bowling Green, 668 N.E.2d 898, 902 (Ohio 1996) (explaining relations. See Kulch, 677 N.E.2d at 324 (explaining that
in the context of the Ohio Whistleblower Statute, Ohio allowing an employer to dismiss an employee for filing a
Revised Code § 4113.52, that “requir[ing] that an actual complaint about unlawful practices would deter other
violation must occur for a whistleblower to gain protection employees from reporting legitimate concerns); Perritt, supra,
leads to nonsensical results which are unjust, unreasonable, at 408 (“The third substep [of jeopardy analysis] is to decide
and contrary to the spirit of the statute and public policy”). if the threat of dismissal is likely in the future to discourage
Rather, an employee simply must have had a “good faith
belief that [his] complaint was valid” at the time of his
complaint. Kulch, 677 N.E.2d at 324; Pytlinski v. Brocar 5
Ford does not co unter H imme l’s factual allegations that he objected
Prods., Inc., 760 N.E.2d 385, 386 (Ohio 2002) (allowing a to the ten-percent p olicy, the Forste hiring, or the Kuykendall and Jackson
Greeley claim where an employee complained of conduct that settlements. Instead Ford suggests that Himmel’s conduct did no t fall
he “believed to be in violation of the Occupational Safety and within the scope of Section 302’s policy because (1) Himmel participated
Health Administration . . . regulations”). Employees should in Ford ’s alleged wrongdo ing, (2) Himmel engaged in co nduc t equally
violative of Sec tion 302’s policy against corruption in union-employer
be encouraged to complain about their employers’ potentially relations, and (3) Ford’s conduct of which Himmel complained was not
illegal conduct, even when they are not certain that the actually illegal. At issue in this inquiry, however, is only H imme l’s
conduct is improper as a matter of law. Requiring employees conduct in comp laining about Fo rd’s potentially illegal activities.
to do legal research prior to making a complaint would Him mel’s own alleged wrongdoing is not relevant to our analysis of
contravene Ohio’s public policy by depriving employees of whether his complaints fell within the scope of conduct protected by
Section 302 . Mo reover, as discussed above, H imme l was no t obligated
a remedy for wrongful discharge whenever they object to to do legal research before complaining about apparent corruption.
No. 01-4277 Himmel v. Ford Motor Co. 13 14 Himmel v. Ford Motor Co. No. 01-4277
the employees from engaging in similar conduct. The answer the court, Collins, 652 N.E.2d at 658, at the summary
to the third question almost always will be ‘yes.’”). judgment stage, the jeopardy inquiry serves only to determine
whether public policy would be jeopardized by permitting an
Therefore, because employee reporting of employer employer to dismiss an employee on the facts viewed in the
activities that might violate Section 302 is conduct necessary light most favorable to a plaintiff employee.
to further the policy of Section 302, because Himmel’s
conduct falls within the scope of this policy, and because We do recognize that Himmel’s alleged wrongful conduct
Ford’s dismissal of Himmel would discourage other may be relevant to the resolution of his Greeley claim in other
employees from complaining about conduct potentially respects, however. Himmel’s ability to recover under Greeley
corrupting union-employer relations, we conclude that the will be impacted by his own alleged violations of Section 302
facts viewed in the light most favorable to Himmel establish because such violations are likely relevant to the elements of
under Ohio law “[t]hat dismissing employees under causation and overriding justification. It would be difficult
circumstances like those involved in [Himmel’s] dismissal for an employee to show that his dismissal was “motivated by
would jeopardize the public policy” behind Section 302. conduct related to the public policy” at issue if his employer
Collins, 652 N.E.2d at 657 (internal quotation omitted). could point to the employee’s illegal conduct as the cause for
dismissal. Collins, 652 N.E.2d at 657 (internal quotation
2. Conduct Barring a Greeley Claim omitted). Similarly, it would be difficult for an employee to
establish the absence of a legitimate overriding business
Although the above analysis indicates that Himmel has justification for his termination if the employee has violated
established jeopardy for purposes of his Greeley claim, Ford company policy and federal law. In this sense, Ford’s
nevertheless maintains that Himmel’s alleged violations of allegations that Himmel violated Section 302 are relevant to
Section 302, as well as his participation in Ford’s alleged the outcome of Himmel’s Greeley claim. However, because
violations of Section 302, preclude this court from finding Himmel has demonstrated a genuine issue of material fact
that the jeopardy element is met. According to Ford, this with respect to the elements of causation and overriding
court should therefore affirm the district court’s grant of justification, summary judgment was not appropriate.
summary judgment for Ford on the jeopardy element of
Himmel’s Greeley claim. Because we do not believe that Ohio law regards either
complicity in an employer’s wrongdoing or independent
The jeopardy element of a Greeley claim takes into account wrongdoing as an automatic bar to Greeley claims, the district
a plaintiff’s conduct only to the extent necessary to determine court erred by concluding that Ford was entitled to summary
whether it falls within the scope of conduct necessary to judgment.
further the public policy at issue. See Perritt, supra, at 408.
In this case, employee complaints of employer activities that III. CONCLUSION
are contrary to the public policy of Section 302 are essential
to furthering the purposes of that statute. We therefore look For the reasons explained above, we conclude that the
only at Himmel’s reporting of complaints; it is not necessary district court erred in granting Ford summary judgment on
for the purposes of jeopardy analysis to examine any of grounds that Himmel’s Greeley claim was barred by
Himmel’s allegedly improper conduct. Moreover, because Himmel’s own alleged violations of Section 302. Himmel
Ohio describes the jeopardy inquiry as a question of law for has established jeopardy as a matter of law and, viewing the
No. 01-4277 Himmel v. Ford Motor Co. 15 16 Himmel v. Ford Motor Co. No. 01-4277
facts in the light most favorable to Himmel, we conclude that ______________
there are genuine issues of material fact as to causation and
overriding justification. For these reasons and because the DISSENT
clarity of Section 302’s policy is not in dispute, we ______________
REVERSE and REMAND the district court’s judgment for
further proceedings consistent with this analysis. ROGERS, Circuit Judge, dissenting. I respectfully dissent,
because in my view Himmel has failed to establish the
jeopardy element of Greeley. That element requires us to
determine whether “dismissing employees under
circumstances like those involved in the plaintiff’s dismissal
would jeopardize the public policy.” Collins v. Rizkana, 652
N.E.2d 653, 657 (Ohio 1995).
As an initial matter, I would apply the standard for making
the jeopardy determination that the Ohio Supreme Court has
in fact used in a similar case, rather than one drawn from
Professor Perritt’s law journal article, although the analysis
under either should probably lead to the same conclusion. In
Wiles v. Medina Auto Parts, 773 N.E.2d 526 (Ohio 2002), the
Ohio Supreme Court applied the following standard: a
Greeley plaintiff must show that disallowing his or her claim
would seriously compromise the objectives of the law that
provides the policy source for the claim. See id. at 531
(“[W]e must assess whether the absence of a cognizable
Greeley claim based solely on a violation of the FMLA would
seriously compromise the Act’s statutory objectives by
deterring eligible employees from exercising their substantive
leave rights.” (emphasis added)).
Given that the intent of Section 302 of the LMRA—the
statute whose policy Himmel relies on—is essentially to
prevent employers and unions from corrupting one another,
the inquiry in the present case should concern whether
denying Himmel’s Greeley claim would seriously
compromise Section 302’s policy against corruption. Himmel
has not adequately shown that it would do so.
An anti-corruption policy is clearly furthered when an
employee exposes his employer’s corrupt practices to an
No. 01-4277 Himmel v. Ford Motor Co. 17 18 Himmel v. Ford Motor Co. No. 01-4277
outside enforcement authority. It may also be furthered, at issue. More general allegations may suffice, but to find a
albeit less certainly, when an employee exposes such serious implication of a statute’s policy, the employee should
practices to authorities within the company, and Ohio courts at least have alleged that the employer has been acting
allow Greeley claims in such cases. See Pytlinski v. Brocar illegally in a context that shows a direct concern with the
Prods., 760 N.E.2d 385, 388 n.3 (Ohio 2002). This assumes, policy underlying the statute. Anything less than this would
however, that the employee is truly blowing the whistle, provide a public policy cause of action protecting complaints
telling people who have the power to change things that that do not promise to alert authorities about illegality, and
something illegal is going on, so that those people can choose hence do not implicate public policy.
either to correct the problem or become culpable themselves.
But if an employee complains about a practice because he In the present case, Himmel brings forward three things that
thinks it a poor policy choice, say, and alleges no corruption he complained about: Ford’s unwritten agreement with UAW
or illegality, then those to whom he complains will that 10% of Ford’s nationwide hiring will be referrals from
presumably have no reason to suspect such evils, and Section individual UAW officials (“10% policy”), the hiring of
302’s anti-corruption policy will not be furthered by his Forste, and the settlement with Kuykendall. Regarding the
complaint. 10% policy, the record indicates only that Himmel
“complained” to certain superiors within Ford.3 Similarly,
A preliminary issue, then, is the degree of specificity with the record is largely silent as to why Himmel initially opted
which an employee must complain of his or her employer’s not to hire Forste, and though Himmel complained later about
wrongdoing. While Ohio cases have not discussed this matter being required to do so,4 there is no indication that his
explicitly, the way that the Supreme Court of Ohio has treated complaints amounted to anything more than “the
certain cases,1 as well as its generally expansive attitude quintessential employee beef,” that “management has acted
toward Greeley claims,2 indicate that an Ohio court would not incompetently.” Murray v. Gardner, 741 F.2d 434, 438 (D.C.
require that Himmel have specifically referred to the statute Cir. 1984). The following excerpt from Himmel’s deposition
is pertinent:
1
For example, according to the factual statement in Fox v. City of
Bowling Green, 668 N.E.2d 898 (O hio 1996), the plaintiff reported “that
he believed some laws may have been violated,” id. at 900 (emphasis 3
added), and this was apparently enough for a W histleblo wer Statute claim. The only reference I find regarding Himm el’s motivation for not
Similarly, in Kulch v. Structural Fibers, Inc., 677 N.E .2d 3 08 (Ohio hiring Forste is a statement by Rich Free man, a Labor R elations Spec ialist
1997), the court was not deterred by the fact that OSH A found the at Ford’s Powertrain Operations Division, who said that Himmel opted
employer to be in violation of regulations other than those the plaintiff against Forste because he preferred “insiders” to “outsiders.” See J.A. at
had accused the emp loyer o f violating. See id. at 310 . 189.
2 4
See Kulch, 677 N.E.2d at 328 (continuing the expansion of the The record indicates that Himmel did not complain that Ford’s
Greeley cause of action by holding that the Whistleblower Statute does action was illegal. Instead, he questioned why Ford would listen to the
not preempt Greeley claims based on whistleblowing). But see Wiles, 773 UA W ’s National Ford Department (“NFD”) when the latter had no
N.E.2d at 534 (holding that a plaintiff may not bring a Greeley claim that standing to file a grievance, and he argued that it was illogical for the
is based solely on the public policy embodied in the federal Family and NFD to oppose his hires, given that all three were UAW members and
Med ical Leave Act, because the remedies provided in the federal act are Forste (as an applicant, only) was no t a U AW memb er. See J.A. at
adequate). 405–06.
No. 01-4277 Himmel v. Ford Motor Co. 19 20 Himmel v. Ford Motor Co. No. 01-4277
Q. The complaint that you made to [Powertrain reasonably believed5 that Ford’s settlement payment to
Operations Division officials, about Forste’s hiring], did
it include a reference to any specific violation of the
5
labor laws, or Labor Management Relations Act, or any As the majority no tes, an employee bringing a Greeley claim need
other specific labor law? not show that his or her employer was actually violating the law in
A. Specifically, no, but I think I may have mentioned question; rather, the emp loyee need show only that the belief was
reasonable. The rationale for the stand ard is tha t the alternative
that [Forste] wasn’t covered under our contract either standard— to require a whistle-blowing employee to show that he or she
from an EEO or NLRB standpoint. reported an actual violation—would mean that “each whistleblower
Q. That was not a complaint that the company in would have to become equal parts policeman, prosecutor, judge, and jury.
doing this is violating such and such a statute, that was A whistleblower could never be certain that a statute has been actually
not the nature of your complaint? violated until the pe rpetra tor was found guilty in cou rt.” Fox, 668 N.E.2d
A. I didn’t say that. at 902 (em phasis in original).
I would add, however, that it makes sense to apply the reasonable
Q. Did you say that with respect to any complaints or belief standa rd more stro ngly where the law is clear and the emplo yee is
objections that you may have made concerning any of the mistaken as to the facts, than to a situation where the facts are clear and
company’s actions at any time? the employee is mistaken as to the law. Where factual matters are
A. Oh, I think I said it with respect to the concerned, it would be burdensome to require that a concerned employee
[Kuykendall/Jackson] grievance settlement, that I investigate until he or she was positive that something had happened.
Hence the law p rotects an em ployee’s reaso nable belief that certain
thought that was improper. actions occurred—actions that, if shown, would be clearly illegal.
Q. Question was, [did you allege that it was] a Interestingly, the Fox court, in illustrating why a reasonable belief
violation of a specific statute[?] standard m akes sense, po sited just such a situation:
A. I complained that it violated federal law.
Suppose that a dispatcher of a taxi company is told by a n
on-duty driver that the driver is drunk. The employee believes
J.A. at 407–08. This establishes that Himmel complained of that the driver does indeed sound intoxicated. Does the
illegality only in relation to the Kuykendall settlement, and dispatcher need to chase down the driver, perform field sob riety,
even then his complaint concerned only “federal law.” On the breathalyzer and blood tests before he may report to his
basis of this, it is apparent that the policies of Section 302 supervisor that the driver is driving while intoxicated?
would not be seriously jeopardized if we disallowed
Id. In situations like this, the rationale underlying the reasonable belief
Himmel’s Greeley claim based on his complaints about the standard is in full force, and sho uld be app lied liberally.
10% policy and the Forste hiring. With respect to the On the other hand, where the employer adm its to what the employee
Kuykendall settlement, however, Himmel’s complaints in that claims it is doing (and hence the facts are undisp uted), and the dispute is
instance at least invoked “federal law.” It is questionable instead over whether what the emp loyer is doing is illegal, the reasonable
whether this is sufficient to assert a Greeley claim. Assuming belief standard m akes less sense b ecause the em ployee is merely arguing
with the employer about something the employer already knows about,
that it is, the inquiry then becomes whether Himmel and the employee is not “expo sing” an ything. (On the other hand, where
the employee does not merely complain of illegality to his or her
supervisors, but reports the suspected violation to som e regulatory entity
outside the employer, the reasonab le belief standard sho uld app ly just as
strongly to legal m istakes.)
The Ohio co urt dec isions, then, could also be read to allow Greeley
claims where an employee reasonably believes that the employer has done
something, where if the emp loyer actually did it, the employer would be
No. 01-4277 Himmel v. Ford Motor Co. 21 22 Himmel v. Ford Motor Co. No. 01-4277
Kuykendall violated Section 302. whether—for purposes of our inquiry into whether the
LMRA’s anti-corruption policy would be “seriously
Ford argues that the settlement could not have violated jeopardized” by denying Himmel’s Greeley claim—the
Section 302 because an employer’s conferral of an alleged intangible benefit received by Mason constituted a
“intangible” benefit—here, union official George Mason’s sufficiently substantial “thing of value” to make Himmel’s
satisfaction in securing an allegedly-improper settlement belief that the Kuykendall settlement payment violated
payment for his niece’s husband—cannot constitute a “thing “federal law” a reasonable belief.
of value” under that section. Ford’s authority for this
proposition is United States v. Cervone, 907 F.2d 332 (2d Cir. In my view the benefit was not sufficiently substantial. In
1990), in which an employer had delivered a bribe through a DeBrouse the corruptness of the payments was evident
union official to a third party, and the Second Circuit held that because it was a given that the third party who received the
any benefit the union official received from being the conduit payments was in no way entitled to them, and the substantial
for the bribe did not constitute a sufficiently tangible “thing nature of the “thing of value” was evident in part because the
of value.” Id. at 347. But Cervone does not stand for the payments were made systematically, week after week.
proposition that an intangible benefit—that is, a benefit that See 652 F.2d at 387. In the present case, on the other hand,
is not in the form of direct material enrichment—can never be the third party—Kuykendall—received the money in a
a “thing of value”; rather, any benefit received in that case settlement, so he had at least an ostensibly legitimate claim of
was simply too evanescent. See id. (“[I]t is anything but clear right to it; Mason as a union representative had a duty to do
what intangible benefit [the union official] received, and that his best to obtain a favorable remedy for a fellow union
benefit thus seems not only intangible but also member; and the payment was a one-time affair. We should
unidentifiable.”). Further, courts have held that more be reluctant to conclude that a union official’s success in
substantial intangible benefits can qualify, even where (as in negotiating a settlement of a union member’s grievance is a
Cervone and in the present case) the direct material benefit “thing of value,” even where the grievance may have been
went to a third party. See United States v. DeBrouse, 652 unfounded. In sum, where there is serious doubt as to
F.2d 383, 388 (4th Cir. 1981) (holding that a union official whether Mason did anything improper, and where any benefit
had received a “thing of value” where an employer had Mason received was too insubstantial to constitute a violation
obeyed the official’s command to deliver weekly payments to of Section 302, Himmel could not reasonably believe that the
a third party “or else,” and the official had received the settlement was obtained in violation of Section 302.6
benefit of being able to command the employer’s obedience).
An additional consideration weighs against finding that
The question in third-party beneficiary cases, then, is Himmel has met the jeopardy requirement for a Greeley
whether the intangible benefit received by the union was claim. Namely, the federal statute upon which Himmel’s
sufficiently substantial. In the present case, the problem is
6
Him mel’s complaints about the Kuykendall settlement were
concerned more with a dispute about whether the settlement was legal and
in violation of the law. See, e.g., Sab o v. Scho tt, 639 N.E .2d 7 83 (Ohio proper, and not with uncovering fac ts that the employer would necessarily
1994) (holding that a Greeley claim was stated where a complaint alleged concede to be illega l. This also cuts against the conc lusion tha t Himmel’s
an act which, “if proven to be true, would constitute conduct on the part accusation was protected under the second prong of Greeley. See footno te
of the defendants which violates the public policy of this state”). 5, supra.
No. 01-4277 Himmel v. Ford Motor Co. 23
Greeley claim is founded, LMRA Section 302, does not
contain an explicit ban on retaliation for reporting or
complaining about violations. This distinguishes this case
from Kulch, which found a Greeley cause of action based on
two statutes, each of which explicitly prohibited adverse
actions by employers against employees who report
violations. One was the Occupational Safety and Health Act,
which explicitly prohibits employer discrimination against
employees who report violations, see 29 U.S.C. § 660(c); the
other was Ohio’s Whistleblower Statute, which prohibits
discharge for reporting statutory violations to regulatory
authorities,7 see Ohio Rev. Code § 4113.52(A)(2); Kulch, 677
N.E.2d at 322–23.
Together, these considerations lead me to conclude that
Himmel has not established the jeopardy element of his
Greeley claim, and I would therefore affirm the judgment of
the district court.
7
The latter prohibition cannot serve as the basis for a Greeley claim
in this case, as there is no allegation that H imme l complained to
regulatory or enforcement authorities. See Ohio Rev. Code
§ 41 13.5 2(A)(2); Kulch, 677 N.E.2d at 315–16.