# Stephen B. Himmel v. Ford Motor Company > Court of Appeals for the Sixth Circuit · January 8, 2004 · 342 F.3d 593 URL: https://www.frixlaw.com/law-library/cases/9496380 ## Case - **Full name:** Stephen B. HIMMEL, Plaintiff-Appellant, v. FORD MOTOR COMPANY, Defendant-Appellee - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** January 8, 2004 - **Citations:** 342 F.3d 593; 2003 WL 22069690 - **Precedential status:** Published - **Opinion:** Dissent by Rogers - **Judges:** Moore, Rogers, Katz - **Cited by:** 103 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9496380 ## How later opinions describe it (automated extraction) - applying the law of the forum state in diversity cases ## Opinion text 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, 73 Ohio St.3d 65 , 652 N.E.2d 653, 657 (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, 96 Ohio St.3d 240 , 773 N.E.2d 526 (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 Him-mel relies on — is essentially to prevent employers and unions from corrupting one *603 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 outside enforcement authority. It may also be furthered, albeit less certainly, when an employee exposes such practices to authorities within the company, and Ohio courts allow Greeley claims in such eases. See Pytlinski v. Brocar Prods., 94 Ohio St.3d 77 , 760 N.E.2d 385 , 388 n. 3 (2002). This assumes, however, that the employee is truly blowing the whistle, telling people who have the power to change things that something illegal is going on, so that those people can choose either to correct the problem or become culpable themselves. But if an employee complains about a practice because he thinks it a poor policy choice, say, and alleges no corruption or illegality, then those to whom he complains will presumably have no reason to suspect such evils, and Section 302’s anti-corruption policy will not be furthered by his complaint. A preliminary issue, then, is the degree of specificity with which an employee must complain of his or her employer’s wrongdoing. While Ohio cases have not discussed this matter explicitly, the way that the Supreme Court of Ohio has treated certain cases, 1 as well as its generally expansive attitude toward Greeley claims, 2 indicate that an Ohio court would not require that Himmel have specifically referred to the statute at issue. More general allegations may suffice, but to find a serious implication of a statute’s policy, the employee should at least have alleged that the employer has been acting illegally in a context that shows a direct concern with the policy underlying the statute. Anything less than this would provide a public policy cause of action protecting complaints that do not promise to alert authorities about illegality, and hence do not implicate public policy. In the present case, Himmel brings forward three things that he complained about: Ford’s unwritten agreement with UAW that 10% of Ford’s nationwide hiring will be referrals from individual UAW officials (“10% policy”), the hiring of Forste, and the settlement with Kuyken-dall. Regarding the 10% policy, the record indicates only that Himmel “complained” to certain superiors within Ford. 3 Similarly, the record is largely silent as to why Himmel initially opted not to hire *604 Forste, and though Himmel complained later about being required to do so, 4 there is no indication that his complaints amounted to anything more than “the quintessential employee beef,” that “management has acted incompetently.” Murray v. Gardner, 741 F.2d 434, 438 (D.C.Cir.1984). The following excerpt from Himmel’s deposition is pertinent: Q. The complaint that you made to [Powertrain Operations Division officials, about Forste’s hiring], did it include a reference to any specific violation of the labor laws, or Labor Management Relations Act, or any other specific labor law? A. Specifically, no, but I think I may have mentioned that [Forste] wasn’t covered under our contract either from an EEO or NLRB standpoint. Q. That was not a complaint that the company in doing this is violating such and such a statute, that was not the nature of your complaint? A. I didn’t say that. Q. Did you say that with respect to any complaints or objections that you may have made concerning any of the company’s actions at any time? A. Oh, I think I said it with respect to the [Kuykendali/Jaekson] grievance settlement, that I thought that was improper. Q. Question was, [did you allege that it was] a violation of a specific statute[?] A. I complained that it violated federal law. J.A. at 407-08. This establishes that Him-mel complained of illegality only in relation to the Kuykendall settlement, and even then his complaint concerned only “federal law.” On the basis of this, it is apparent that the policies of Section 302 would not be seriously jeopardized if we disallowed Himmel’s Greeley claim based on his complaints about the 10% policy and the Forste hiring. With respect to the Kuyk-endall settlement, however, Himmel’s complaints in that instance at least invoked “federal law.” It is questionable whether this is sufficient to assert a Greeley claim. Assuming that it is, the inquiry then becomes whether Himmel reasonably believed 5 that Ford’s settlement payment to Kuykendall violated Section 302. *605 Ford argues that the settlement could not have violated Section 302 because an employer’s conferral of an “intangible” benefit — here, union official George Mason’s satisfaction in securing an allegedly-improper settlement payment for his niece’s husband — cannot constitute a “thing of value” under that section. Ford’s authority for this proposition is United States v. Cervone, 907 F.2d 332 (2d Cir.1990), in which an employer had delivered a bribe through a union official to a third party, and the Second Circuit held that any benefit the union official received from being the conduit for the bribe did not constitute a sufficiently tangible “thing of value.” Id. at 347 . But Cervone does not stand for the proposition that an intangible benefit — that is, a benefit that is not in the form of direct material enrichment — can never be a “thing of value”; rather, any benefit received in that case was simply too evanescent. See id. (“[I]t is anything but clear what intangible benefit [the union official] received, and that benefit thus seems not only intangible but also unidentifiable.”). Further, courts have held that more substantial intangible benefits can qualify, even where (as in Cervone and in the present case) the direct material benefit went to a third party. See United States v. DeBrouse, 652 F.2d 383, 388 (4th Cir.1981) (holding that a union official had received a “thing of value” where an employer had obeyed the official’s command to deliver weekly payments to a third party “or else,” and the official had received the benefit of being able to command the employer’s obedience). The question in third-party beneficiary cases, then, is whether the intangible benefit received by the union was sufficiently substantial. In the present case, the problem is whether — for purposes of our inquiry into whether the LMRA’s anti-corruption policy would be “seriously jeopardized” by denying Himmel’s Greeley claim — the alleged intangible benefit received by Mason constituted a sufficiently substantial “thing of value” to make Him-mel’s belief that the Kuykendall settlement payment violated “federal law” a reasonable belief. In my view the benefit was not sufficiently substantial. In DeBrouse the corruptness of the payments was evident because it was a given that the third party who received the payments was in no way entitled to them, and the substantial nature of the “thing of value” was evident in part because the payments were made sys *606 tematically, week after week. See 652 F.2d at 887 . In the present case, on the other hand, the third party — Kuykendall— received the money in a settlement, so he had at least an ostensibly legitimate claim of right to it; Mason as a union representative had a duty to do his best to obtain a favorable remedy for a fellow union member; and the payment was a one-time affair. We should be reluctant to conclude that a union official’s success in negotiating a settlement of a union member’s grievance is a “thing of value,” even where the grievance may have been unfounded. In sum, where there is serious doubt as to whether Mason did anything improper, and where any benefit Mason received was too insubstantial to constitute a violation of Section 302, Himmel could not reasonably believe that the settlement was obtained in violation of Section 302. 6 An additional consideration weighs against finding that Himmel has met the jeopardy requirement for a Greeley claim. Namely, the federal statute upon which Himmel’s 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. . For example, according to the factual statement in Fox v. City of Bowling Green, 76 Ohio St.3d 534 , 668 N.E.2d 898 (1996), the plaintiff reported "that he believed some laws may have been violated,” id. at 900 (emphasis added), and this was apparently enough for a Whistleblower Statute claim. Similarly, in Kulch v. Structural Fibers, Inc., 78 Ohio St.3d 134 , 677 N.E.2d 308 (1997), the court was not deterred by the fact that OSHA found the employer to be in violation of regulations other than those the plaintiff had accused the employer of violating. See id. at 310. . See Kulch, 677 N.E.2d at 328 (continuing the expansion of the Greeley cause of action by holding that the Whistleblower Statute does not preempt Greeley claims based on whistleblowing). But see Wiles, 773 N.E.2d at 534 (holding that a plaintiff may not bring a Greeley claim that is based solely on the public policy embodied in the federal Family, and Medical Leave Act, because the remedies provided in the federal act are adequate). .The only reference I find regarding Him-mel’s motivation for not hiring Forste is a statement by Rich Freeman, a Labor Relations Specialist at Ford's Powertrain Operations Division, who said that Himmel opted against Forste because he preferred "insid.ers” to "outsiders.” See J.A. at 189. . The record indicates that Himmel did not complain that Ford’s action was illegal. Instead, he questioned why Ford would listen to the UAW's National Ford Department ("NFD”) when the latter had no standing to file a grievance, and he argued that it was illogical for the NFD to oppose his hires, given that all three were UAW members and Forste (as an applicant, only) was not a UAW member. See J.A. at 405-06. . As the majority notes, an employee bringing a Greeley claim need not show that his or her employer was actually violating the law in question; rather, the employee need show only that the belief was reasonable. The rationale for the standard is that the alternative standard-to require a whistle — blowing employee to show that he or she reported an actual violation — would mean that "each whistleblower would have to become equal parts policeman, prosecutor, judge, and jury. A whistleblower could never be certain that a statute has been actually violated until the perpetrator was found guilty in court.” Fox, 668 N.E.2d at 902 (emphasis in original). I would add, however, that it makes sense to apply the reasonable belief standard more strongly where the law is clear and the employee is mistaken as to the facts, than to a situation where the facts are clear and the employee is mistaken as to the law. Where factual matters are concerned, it would be burdensome to require that a concerned employee investigate until he or she was positive that something had happened. Hence the law protects an employee’s reasonable belief that certain actions occurred — actions that, if shown, would be clearly illegal. Interestingly, the Fox court, in illustrating why a reasonable belief standard makes sense, posited just such a situation: Suppose that a dispatcher of a taxi company is told by an on-duty driver that the *605 driver is drunk. The employee believes that the driver does indeed sound intoxicated. Does the dispatcher need to chase down the driver, perform field sobriety, breathalyzer and blood tests before he may report to his supervisor that the driver is driving while intoxicated? Id. In situations like this, the rationale underlying the reasonable belief standard is in full force, and should be applied liberally. On the other hand, where the employer admits to what the employee claims it is doing (and hence the facts are undisputed), and the dispute is instead over whether what the employer is doing is illegal, the reasonable belief standard makes less sense because the employee is merely arguing with the employer about something the employer already knows about, and the employee is not "exposing” anything. (On the other hand, where the employee does not merely complain of illegality to his or her supervisors, but reports the suspected violation to some regulatory entity outside the employer, the reasonable belief standard should apply just as strongly to legal mistakes.) The Ohio court decisions, then, could also be read to allow Greeley claims where an employee reasonably believes that the employer has done something, where if the employer actually did it, the employer would be in violation of the law. See, e.g., Sabo v. Schott, 70 Ohio St.3d 527 , 639 N.E.2d 783 (1994) (holding that a Greeley claim was stated where a complaint alleged an act which, "if proven to be true, would constitute conduct on the part of the defendants which violates the public policy of this state”). . Himmel's complaints about the Kuykendall settlement were concerned more with a dispute about whether the settlement was legal and proper, and not with uncovering facts that the employer would necessarily concede to be illegal. This also cuts against the conclusion that Himmel's accusation was protected under the second prong of Greeley. See footnote 5, supra. . The latter prohibition cannot serve as the basis for a Greeley claim in this case, as there is no allegation that Himmel complained to regulatory or enforcement authorities. See Ohio Rev.Code § 4113.52(A)(2); Kulch, 677 N.E.2d at 315-16 . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9496380. Public record. Not legal advice.