Sventko v. Kroger Co.

Allen, J.

(concurring). I agree with the result reached by Judge Holbrook but believe some additional comments may be helpful in this case of first impression. 1 Although the complaint alleges *650 that plaintiffs discharge "was caused solely by the filing of plaintiff’s lawful claim for Workmen’s Compensation” the facts set forth in the bill disclose an equally plausible and legitimate reason for terminating the at-will employment relationship, viz.: that defendant was apprehensive that upon re-employment, plaintiff would sustain an aggravation or reoccurrence of the original low back injury. Given the high cost of workmen’s compensation insurance in Michigan and the high rate of reoccurrence of lumbar injuries, this alternate explanation of plaintiff’s discharge is at least as plausible as the one alleged by the complaint. 2

However, for purposes of reviewing the validity of a summary judgment, we must accept as true not only the factual allegations made in the complaint but the conclusion, if reasonably drawn, stated in the complaint. In other words, we must accept as true the allegation that discharge was solely because plaintiff filed a compensation claim even though an equally valid and legitimate conclusion could be inferred from the facts recited.

Accordingly, this case should be remanded for a trial at which time the employer’s reasons for plaintiff’s discharge may be considered along with the allegations made by plaintiff. Potentially, our decision in this case opens the door to abuse by allowing spurious allegations of discharge solely because of the filing of a claim and a trial where the jury sympathies will lie in favor of plaintiff. But much of the abuse may be avoided if, at the time of discharge, the employer sets forth reasons clearly establishing that no attempt was made to dissuade the injured employee from filing a claim *651 and that the reasons for not returning the employee to work were in no way retaliatory.

As Judge Holbrook has indicated, the absoluteness of the rule that an employee at will may be discharged for any reason whatsoever has increasingly been circumscribed by the emerging theory that the right of arbitrary discharge is limited when the discharge contravenes a statute or is contrary to public policy. Petermann v International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, 174 Cal App 2d 184; 344 P2d 25 (1959) (plaintiff discharged because of his refusal to commit perjury at the employer’s request. Held that discharge would be contrary to the spirit of the law and public policy); Monge v Beebe Rubber Co, 114 NH 130; 316 A2d 549 (1974) (jury verdict for female employee at will sustained where discharge occurred because employee resisted foreman’s sexual advances); Nees v Hocks, 272 Or 210 ; 536 P2d 512 (1975) (judgment in favor of employee, discharged solely because she went on jury duty contrary to company policy, sustained); Frampton v Central Indiana Gas Co, 260 Ind 249; 297 NE2d 425 (1973) (judgment in favor of employee alleged to have been discharged because she filed a claim against the employer for workmen’s compensation benefits). Appellate courts have approached the new doctrine on tiptoes, declining to apply it in corporate management disputes or in other situations where no clear mandate of public policy is involved. 3 The *652 case before us does not, as in Percival and Geary, supra, involve some vaguely expressed public purpose. Instead, it concerns a long standing statute whose clear purpose, as defined in Whetro v Awkerman, 383 Mich 235, 242 ; 174 NW2d 783, 785 (1970) , would obviously be violated assuming, as we must assume, the allegations in plaintiff’s complaint are true. I recognize that statutes will not be extended by implication to abrogate established rules of common law. McKinney v Caball, 40 Mich App 389 ; 198 NW2d 713 (1972), Silver v International Paper Co, 35 Mich App 469 ; 192 NW2d 535 (1971) . However, we are not in this opinion extending the Workmen’s Compensation Act but only articulating what was there from the time it was first enacted.

Is the well recognized legal principle that an employee at will may be discharged at any time for any reason, or for no reason at all, subject to exception where plaintiif alleges that the sole cause of discharge is the filing of a claim for workmen’s compensation benefits? The issue posed has never been raised in Michigan and, in other jurisdictions, has been considered in only a handful of cases. Annotation: Workmen’s Compensation, Recovery for Discharge in Retaliation for Filing Claim, 63 ALR3d 979, 981.

And, as I understand Judge Holbrook’s opinion, a jury should be instructed to find no cause of action if it accepts the alternative explanation for the termination of this employment at will relationship.

Percival v General Motors Corp, 400 F Supp 1322, 1323 (ED Mo, 1975), summary judgment for defendant granted where plaintiff, head of the mechanical development department on a month-to-month basis alleged he was discharged in retaliation for disagreement with top management regarding GM’s work on alternate power plants; Geary v United States Steel Corp, 456 Pa 171; 319 A2d 174 (1974), trial court’s dismissal of plaintiff’s complaint alleging retaliatory discharge because plaintiff claimed that one of the company’s new products was unsafe sustained on appeal.