Jason D Giordano v. Williams International Co LLC ( 2019 )

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
JASON D. GIORDANO, UNPUBLISHED
April 25, 2019
Plaintiff-Appellant,
v No. 342386
Oakland Circuit Court
WILLIAMS INTERNATIONAL CO., LLC, LC No. 2016-155873-CL
Defendant-Appellee.
Before: MURRAY, C.J., and SAWYER and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendant in this wrongful employment termination case. We affirm.
I. BACKGROUND
Plaintiff, a certified aviation mechanic, served as a full-time technician for defendant
from September 2007 until defendant terminated him on November 5, 2015. A year later
plaintiff sued defendant claiming that it discharged him in violation of public policy because he
refused to violate federal laws or regulations. Plaintiff claimed that defendant requested that he
violate 14 CFR 43.3(d) (2012) and 14 CFR 43.12 (1982) but he refused and was fired.
Plaintiff alleged that his supervisor, Jeffrey Siedlaczek, asked him to falsify maintenance
and repair records in violation of 14 CFR 43.3(d) (2012) by verifying the completion of work
that plaintiff did not personally perform or witness being performed and by resubmitting aircraft
engine oil samples to determine contaminant levels to obtain more favorable results. Defendant
denied that it asked plaintiff to do anything contrary to law or safety requirements. After
conducting discovery, defendant moved for summary disposition.
Defendant relied on Siedlaczek’s deposition testimony. He testified that plaintiff
stamped work of other individuals only when the work plainly indicated what had been
performed by others. On occasion he affixed his stamp to a process to indicate that an internal
company process requirement was done. Doing so did not violate any Federal Aviation
Administration (FAA) regulation. Siedlaczek agreed that intentional falsification of an FAA
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required maintenance record would violate FAA regulations but defendant’s procedure of
“stamping” the various engine processing steps was not subject to any FAA regulation. The log
books maintained by defendant when working on an engine pertained to processes internal to
defendant’s operations and not record keeping governed by or subject to FAA regulations.
Defendant also relied on the affidavit of Frank Smith, another employee, who served as
the Organization Designation Authorization (ODA) Holder and as the onsite representative of the
FAA. He had responsibility to ensure that defendant complied with all FAA regulations,
processes and controls, and the requirements of the ODA manual pertaining to FAA processes
and certification. Smith reviewed plaintiff’s complaint and opined in his affidavit that plaintiff’s
allegations lacked accuracy and were incorrect for several reasons, including:
A. There is no federal law and no FAA regulations governing any
documents that are stamped and/or signed off on by technicians performing repair
or maintenance work on aircraft engines, including the Process Plans and/or
Process Checklists and documents regarding “stretch numbers” and the
measurement of possible contaminants in aviation oil.
B. None of the documents that are stamped by technicians performing
repair or maintenance work on aircraft engines, including the Process Plans and/or
Process Checklists and documents regarding “stretch numbers” and the
measurement of possible contaminants in aviation oil, are regulated under 14 CFR
§ 43.12. In particular, none of those documents constitute “any record or report
that is required to be made, kept, or used to show compliance with any
requirement under this part” under 14 CFR § 34.12(a).
C. Federal law and FAA regulations regarding documentation are directed
exclusively to performance criteria for an aircraft engine’s return to service. . . .
When [an Acceptance Test Procedure] is completed it is documented on the 8130-
3 form “Authorized Release Certificate”, which certifies that an engine has passed
performance tests and is ready to return to service. That is the only document that
the FAA requires [defendant] to make, keep, or use to show compliance with 14
CFR § 43.12.
D. The Repair Station has trained and authorized qualified mechanics to
issue the Authorized Release Certificate 8130-3 in accordance with FAA order
8130.21H. [Plaintiff] had nothing to do with any aspect of the Authorized
Release Certificate 8130-3.
E. All of the documents [plaintiff] could or would be allowed to
stamp/sign off on, including the Process Plans and/or Process Checklists and
documents regarding “stretch numbers” and the measurement of possible
contaminants in aviation oil, are internal documents of [defendant], created and
maintained by [defendant] for its own purposes, not to comply with federal law or
FAA regulations.
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Smith also testified that 14 CFR 43.3(d) (2012) did not apply to defendant because it does “not
return to service any product under an individual’s A&P certificate.”
Defendant also offered the expert testimony of Daniel Allison, the current president of an
aviation consulting firm and a retiree of the FAA. Allison averred that he reviewed the affidavit
provided by Smith and “agree[d] that the information contained therein is true and accurate.”
Allison indicated that he also reviewed plaintiff’s complaint and found that plaintiff misstated
the existence and application of federal law and FAA regulations regarding documents and
operations at defendant’s facility. Allison indicated that 14 CFR 43.3(e) (2012) applied to
defendant and that defendant had authorization to approve aircraft for return to service under 14
CFR 43.7(c) and (d), but plaintiff lacked qualification or authorization “to make Return to
Service decisions” or “to sign any of [defendant’s] return to service documents[.]” Allison
concurred with Smith that federal law and FAA regulations relied on by plaintiff did not govern
“any documents that are stamped and/or signed off by a basic level technician performing repair
or maintenance work,” including “ ‘stretch numbers’ and the measurements of possible
contamination in the applicable aviation oil tested at [defendant].” Allison confirmed that
defendant was required to comply with FAA regulation 14 CFR 43.12 (1982), regarding the
completion of Form 8130-3, but that plaintiff lacked the training, qualification, or authorization
to complete that form.
Plaintiff opposed defendant’s motion. Plaintiff relied on his deposition testimony in
which, among other things, he testified that Siedlaczek ordered him to “stamp off” on work in
the log books even though he did not perform or observe the work and that Siedlaczek ordered
him to falsify data measurements in violation of FAA regulations. Plaintiff asserted that because
he refused to engage in illegal and unethical conduct, Siedlaczek placed him on a performance
improvement plan and later initiated plaintiff’s termination.
The trial court considered the record evidence and granted defendant’s motion. This
appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion brought under MCR
2.116(C)(10). Stock Bldg Supply, LLC v Crosswinds Communities, Inc, 317 Mich App 189, 198;
893 NW2d 165 (2016) (quotation marks and citation omitted). In Stock Bldg Supply, this Court
summarized:
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. In evaluating a motion for summary disposition
brought under this subsection, a trial court considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties in the light
most favorable to the party opposing the motion. Summary disposition under
MCR 2.116(C)(10) is proper when there is no genuine issue regarding any
material fact. A reviewing court may not employ a standard citing the mere
possibility that the claim might be supported by evidence produced at trial. A
mere promise is insufficient under our court rules. While it is true that the trial
court must consider affidavits, pleadings, depositions, admissions, and other
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evidence submitted by the parties, the nonmoving party may not rely on mere
allegations or denials, but must set forth specific facts that show that a genuine
issue of material fact exists. [Id. at 198-199 (quotation marks and citations
omitted).]
III. ANALYSIS
In Michigan, in the absence of a contract, the general rule of at-will employment applies
and defines the employment relationship between employers and their employees. Suchodolski v
Mich Con Gas Co, 412 Mich 692, 694-695; 316 NW2d 710 (1982) (citation omitted). Under the
general rule of at-will employment, either the employer or employee may terminate the
employment relationship with or without cause at any time. Id. Our Supreme Court explained in
Suchodolski that an exception to the general rule has been recognized:
based on the principle that some grounds for discharging an employee are so
contrary to public policy as to be actionable. Most often these proscriptions are
found in explicit legislative statements prohibiting the discharge, discipline, or
other adverse treatment of employees who act in accordance with a statutory right
or duty.
The courts have also occasionally found sufficient legislative expression
of policy to imply a cause of action for wrongful termination even in the absence
of an explicit prohibition on retaliatory discharges. Such a cause of action has
been found to be implied where the alleged reason for the discharge of the
employee was the failure or refusal to violate a law in the course of employment.
[Id. at 695 (citations omitted).]
In Clifford v Cactus Drilling Corp, 419 Mich 356, 368; 353 NW2d 469 (1984) (citation
omitted) our Supreme Court clarified:
Of course, it is not this Court’s function to legislate employee job security.
Nonetheless, the employee does have an interest in protection from discharge
based solely on refusal to act in an unlawful manner or attempt to exercise a
statutorily or constitutionally conferred right. Likewise, society has an interest in
ensuring that its laws and important public policies are not contravened. These
interests can be equitably balanced by recognizing an action for retaliatory
discharge only when important and concretely articulated public policies are
contravened.
* * *
Three elements of a cause of action based on a public policy exception to
the employment-at-will rule may be distilled. . . . First, plaintiff engaged in
protected activity. The activity’s protection may stem either from a constitutional
or statutorily granted right or from an obligation favored by statutory policy.
Second, plaintiff was discharged. Third, a causal connection exists between the
plaintiff’s protected activity and the discharge. [Id. at 368-369 (citation omitted).]
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In Piasecki v Hamtramck, 249 Mich App 37, 43; 640 NW2d 885 (2001), this Court held
that the defendants were entitled to summary disposition of the plaintiff’s claim that she was
discharged because she refused to violate the law because the statute cited by plaintiff contained
a provision or exception that did not render the release of information a violation of the cited
statutory provision relied on by plaintiff for a public policy argument. Piasecki stands for the
proposition that, where a plaintiff alleges termination against public policy based on the refusal
to violate a law, an actual law must exist that would have been violated if the plaintiff acted as
required by the employer.
In this case, plaintiff contends that his employer required him to violate FAA regulations;
and, when he refused, defendant terminated him in contravention of public policy. To establish
his right to relief, plaintiff had to show that the law actually prohibited the conduct that he
alleged defendant required him to perform. The unrebutted evidence proffered by defendant,
however, established that the FAA regulations on which plaintiff relied did not comprise a law
that applied or could be violated by plaintiff’s performance of the requested work. Allison and
Smith both testified that 14 CFR 43.3(d) (2012) and 14 CFR 43.12 (1982) did not apply to the
work defendant requested plaintiff to do. Plaintiff did not have to prove that he or defendant in
fact violated the FAA regulations, but he was required to establish that the regulations prohibited
the conduct that he refused to perform in order to establish that his termination violated public
policy. The record reflects that the paperwork defendant required of plaintiff applied to internal
business processes and none of it was required by or governed by federal law or regulation. It is
axiomatic that an employer cannot violate public policy by terminating an at-will employee for
refusing to perform work that, if done, does not violate any law. In this case, because the
conduct requested by defendant did not violate any law, plaintiff’s wrongful discharge as against
public policy claim failed as a matter of law. Therefore, the trial court correctly granted
defendant summary disposition.
We also find no merit to plaintiff’s contention that 14 CFR 43.9 (2004) expanded the
scope of records subject to regulation under 14 CFR 43.12 (1982). Plaintiff cites no authority
that supports this argument. “ ‘An appellant may not merely announce his position and leave it
to this Court to discover and rationalize the basis for his claims, nor may he give issues cursory
treatment with little or no citation of supporting authority.’ ” Movie Mania Metro, Inc v GZ
DVD’s, Inc, 306 Mich App 594, 605-606; 857 NW2d 677 (2014) (citation omitted). Further, the
record reflects that Smith’s and Allison’s testimonies established that no federal law and no FAA
regulations governed the internal documentation of which defendant required plaintiff to stamp
or sign.
Plaintiff also contends that, because the Whistleblower Protection Act (WPA), MCL
15.362, permits claims based upon suspected violations of law or regulation, by analogy, his
termination should have been held as against public policy because he reasonably but incorrectly
believed that defendant required him to violate a law or regulation. We reject this argument.
In Kimmelman v Heather Downs Mgt Ltd, 278 Mich App 569, 573; 753 NW2d 265
(2008), this Court explained, that:
courts may only derive public policy from objective sources, our Supreme Court’s
enumerated “public policies” in the context of wrongful termination all entail an
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employee exercising a right guaranteed by law, executing a duty required by law,
or refraining from violating the law.
Michigan caselaw does not support the proposition that a plaintiff’s subjective and incorrect
beliefs have any bearing on the issue whether the employee’s termination was contrary to public
policy. To have a viable claim, the terminated employee must establish that he exercised an
actual right guaranteed by law, executed a duty required by law, or refrained from violating the
law. Plaintiff failed to do so in this case. Plaintiff’s incorrect understanding of the applicable
law cannot serve as the foundation on which to claim that his termination violated public policy.
Therefore, the trial court correctly granted defendant summary disposition.
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ James Robert Redford
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