NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a1208n.06 No. 11-1764 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT TERRENCE P. SHAUG HNESS Y, P laintif f-App ellant,

v. INTERPU BLIC GRP . OF COS., INC., Defendan t-Appellee. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE EASTE RN DISTRICT OF M ICHIGAN

BEFORE: CLAY and S UTTON, Circuit Judges; RICE, DistrictJudge. * CLAY, Circuit Judge. I n this diversity case , Plain t i ff Terr ence P. Shaug hnessy sued his former employ er, Def

endant I nterpublic Group of Companies, I nc. (“I PG”), under Michig an law for brea ch of contra ct and wrong ful discharg e, alleg ing that he was terminated afte r repor ting a fellow employ ee’ s unlawful conduct. On appea l, Plaintiff challeng es order s b y t h e district court that g rante d Def

endant’ s motion to dismiss and denied Plaintiff leave to file an amende d complaint. For the re asons that follow, we AF F IRM

. BACK GR OUND The fac ts, as pleade d by Plaintiff and taken as true for t h e p u rp o s es of this appea l, are as follows:

The Honora

ble Walter Her

bert Rice, United States District J udg e for the Southern District * of Ohio, sitting by

desig nation.No. 11-1764

I PG is a g lobal holding company that owns a family of thirty -eig ht subsidiary adver tising and

m ar k et i ng ag encie s. I n J uly of 2003, I PG hired Plaintiff to work at its subsidiary company , Momentum Worldwide (“Momentum”)

. At some unspecif i ed d at e, Plaintiff was transfe rre d to another of I PG’s subs i d iaries, GM R*W orks, a company whose sole client is the automotive manufa cture r, Gene ral Motors Company (“G en era l Motors”). During Plaintiff’s five-y ear tenure with I PG-aff

iliates, his position was designa ted “at-will.” Plaint i ff wa s “h i g hly qualified” for his positions and consistently rec eived “ outstanding” perf ormanc e ra tings. On a y ear ly basis, I PG r equire d its e mploy ees to sign a form for mally acknow ledg ing the ir

rec eipt, awa

rene ss, and under standing of t he company ’s writt en “Code of C onduct” (here afte r t he “Code of Conduct” or the “C o d e” ). T h e Code of Conduct consisted of two parts, titled: “Part 1: Confidentiality and No n -S o l icitation Ag ree ment,” and “Part 2: Code of C onduct.” The two parts outlined I PG’s policies on matters such as confide ntiality and non-solicitation, conflicts of interest, the re ceipt of g ifts, and prohibitions ag ainst trading on inside information. Significa nt to the prese nt suit, the Code of Conduct included the following rele vant clause s: A closing statement in Part 1which, afte r outlining I PG’s policies on confide ntiality and nonsolicitation, stated that, “[n] o t h i n g h ere in shall chang e the at-will nature of my employ ment rela tionship wit h the Company .” A prea mble to Part 2 stated that I PG “take [s] pride in a reputa tion of high moral and ethical standards” and has a “commitment as a Company and as I ndividuals” to “ac t with fairne ss, honesty and integ rity

in all of our business dea lings.” The pre amble also provide d: This Code of Conduct expresses in g ener al terms the standards of conduct that have alway s been and continue to be expected of all Company employ ees in their day -to2No. 11-1764

day activities and in their rela tionships with those with whom the Company d oes business

. . . The Code of Conduct is not a compre hensive d o cu m ent intended to addre ss e very leg al or ethical issue that y ou might fa ce, nor is it a description of all the laws and policies that apply to Company businesses. I t should be used as a g uide and a resour ce to aler

t y ou to signific ant leg al and ethical issues that fre quently arise. I n addition, the Code encour ag ed employ ees to “fe el fre e” to bring up sensitive matters and to dir ect their questions to I PG’s Human Resource s Direc tor or Corporate L eg al Depa rtment. The Code of Conduct ref

ere nced a company “Aler

tline” for employ ees to call in order to repor t violations of the Code or

of any of I PG’s other policies a

nd proce dures. 1 I n the closing section of Part 2, under a heading titled “Compli ance ,” the Code of Conduct stated that, “[n] o reta liation will be taken ag ainst any employ ee for raising any conce rn, question or complaint in good f

aith.” I n addition to the Code of Conduct, Plaintiff also appende d to his complaint three other documents as exhibi ts: (1) an elec tronic “sig nature ” pag e confirming that Plaintiff signe d his 2008 Code of Conduct form and an elec tronic note (of unspecifie d orig in, but presumably authore d by Plaintiff), in w hich the wr iter stated that he repor ted a Code of Conduct violation in 2007 and was disappointed that his complaint was not handled confide ntially ; (2) an I PG “Risk Manage m en t Bulletin,” g ener ally descr ibing how to “re por[t] corr uption when y ou see it,” and (3) a May 30, 2007 email from I PG’s CEO, Michae l Roth, urg ing empl oy ees to complete I PG’s online “Code of

The c omplaint does not indicate whe ther the A lertline is anony mous. 1 3No. 11-1764

Conduct Course,” as a “ver y important,” “key component” of I PG’s “pledg e to be Sarbane s-Oxley compliant by

the end of

the y ear .” 2 The complaint alleg es that, at some unspecifie d date, Plaintiff discovere d that “at least one manag ement employ ee” was “eng ag ing in illega l conduct.” Plaintiff discovere d that t h e unnamed employ ee was falsely billin g Ge nera l Motors for persona l expenses, stealing Gene ral Motors proper ty and selli ng it online, using Gener al Motors proper ty for pe rsonal purpose s, and misusing Gene ral Motors funds. Plaintiff repor ted t his misconduct to I PG’s corpor ate attorney who i n turn direc ted Plaintiff to notify senior manag ement. Plaintiff, rely ing on I PG’s Code of Conduct and its written confide ntiality and anti-re taliat i o n policies there in, repor ted the misconduct via I PG’s Alertline on Mar ch 17, 2007 and A pril 7, 2007. 3 Shortly afte r he made the re ports, Plaintiff alleg es De fenda nt be g an reta liating ag ainst him by , inter alia , “re moving important job assig nments, assig ning important job functions to other staff members, deg rading Plaintiff in fr o n t of his clients and co-w orker s, and [overly scrutinizing] his work perf ormanc e.” Plaintiff does not specific ally state who in the corpor ation was involved either in his repor

t of misconduct or in any of the alleg ed reta liatory actions. Plaintiff contends that the
reta liatory

conduct c ontinued until he was terminate d on November 3, 2008. Def endant infor

med

The Sarbane s-Oxley Act of 2002, codified at 116 Stat. 745, is the fede ral statute that set new 2 report i n g standards for cer tain publicly trade d corpor ations in response to the major acc ounting scanda ls of the ea

rly 2000s, including Enr on, Ty co, and WorldCom. The rec ord is somew hat inconsistent about when this whistleblowing took pla ce and what 3 subsidiary Plaintiff worke d for at that time. Although Def endant and the district court state that Plaintiff reporte d the misconduct while he was wor king at Momentum, the misconduct appea rs to be re lated totally

to activities at GM R*Works. The parties have not explained this discrepanc y . 4No. 11-1764

Plaintiff that he was terminated as part of a reduc tion in forc e attribut ab l e t o Ge n era l Motors’ financ ial difficulties during the 2008 financ ial crisis. Plaintiff filed t his diversity suit on May 29, 2010, alleg ing claims under M i ch i gan law for brea ch of cont ra ct and wrong ful discharg e in violation of public policy

. On April 23, 2010, Def endant moved to dismiss under Rule 12(b)( 6) of the Fe dera l Rules of Civil Procedur e. Plaintiff filed a response opposing dismiss al and a motion for leave to file a first amende d complaint, seeking
to add some para gra p hs to his orig inal cause s of action and an additional claim for promissory estoppel. The dist rict court h el d oral arg ument befor e is suing an order g ranting Def endant’ s motion
to dismiss and deny ing Plaintiff leave to file an amende d complaint. Shaughnessy v. In t er p u b l ic Grp. of Cos., Inc. , No. 09-12077, 2010 WL 2630164 (E.D. Mich. J une 28, 2010). Plaintiff move d for rec onsideration, focusing on the district court ’s ru l i n g that his promissory estoppel claim was futile, but was unsucc essful. This timely appea l follo we d

. Orig inal jurisdiction for this diversity action ex ists pursuant to 28 U.S.C. § 1332. Appellate jurisdiction lies under 28 U.S.C. § 1291. DISCUSSIO N I. Stand ard of Review Wheth er t he dis trict court properly dismiss ed the plaintiff’s sui t pursuant to Rule 12(b)( 6) is a question of law which this Court revie ws de novo . W atso n Carpet & Floor Covering, Inc. v. Mohawk Indus., Inc ., 648 F.3d 452, 456 (6th Cir. 2011). I n doing so, this C o u rt const rues the complaint in the light most fa vorable to the plaintiff, acc epting its a lleg ations as true, and draw ing

5No. 11-1764

all rea sonable infere nces in the plaintiff’s favor

. Id

. (citing In re Trave l Agent Comm’n Antitrust Liti g. , 583 F.3d 896, 902 (6th Cir. 2009)). “I n deter mining whether to g rant a Rule 12(b)( 6) motion, the court primarily consi d ers the alleg ations in the complaint, althoug h matters of public rec ord, order s, items appea

ring in the record of the case, and ex hibits attached to t he complaint, also may be taken into acc ount

. . . [D] ocuments that a defe ndant attache s t o a m o t i o n t o dismiss are considere d part of the pleading s if they are ref err ed to in the plaintiff’s complaint and are centr al to [hi s] claim.” Ga r d

n er v. United States , 443 F. App’x 70, 73 (6th Cir. 2011) (quoting Amini v. Ob er l i n C ollege , 259 F.3d 493, 502 (6th Cir. 2001)). This Court may aff irm the district court ’s

ru l i n g o n any g rounds, i ncluding those not relied upon by the di strict court. Hensley Mfg., Inc. v. ProPride, Inc

. , 579 F.3d 603, 609 ( 6th Cir. 2009). To survive a motion to dismiss under Rule 12(b)( 6), a complaint need only contain “a short and plain statement of the claim showing that the pleade r is entitled to relief .” Fe d. R. C i v . P

. 8(a) (2). Although this standard does not require “deta iled fac tual alleg ations,” it is not sufficie nt to plead a set of fac ts that would be mere ly “consistent with” a claim to rel i ef

. B el l A t l. Corp. v. Twombly , 550 U.S. 544, 555 (2007). Rather, the plaintiff m ust all ege facts that, acc epted as true, provide sufficie nt “fa ctual enhanc ement” to “ra ise a rig ht to relief above the specula tive level” and “state a claim to relief that is plausible on its fac e.” Id

. at 555, 570. “A claim has fac ial plausibilit y when the plaintiff pleads fac tual content that allows the court to draw the rea sonable infere nce that the defe ndant is liable for the misconduct alleg ed.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). “To conduct this analy sis, [t he] court should first identify fac tual alleg ations enti tled to a presumption of truth

. . . [and] [t ]hen the court should consider[] the fac tual allega tions in [t he] complaint to

6No. 11-1764

deter mine if they plausibly sug g est an entitlement to relief .” Carrier Corp. v. Outokumpu Oyj , 673 F.3d 430, 444 (6th Cir. 2012) (quoting Iq b a l , 5 5 6 U.S. at 679 (interna l quotations, altera tions omitted)). Although this court must acc ept all well-plea ded fac tual alleg ations in the complaint as true, this Court need not acc ept as true “leg al conclusion[s] couche d as fac tual alleg at i on[s] .” Twombly , 550 U.S. at 555 (quoting Papasan v. All ain , 478 U.S. 265, 286 (1986)) ; see a l so Iqbal , 556 U.S. at 678. This Court ty

pically revie ws the denial of a motion for leave to amend a complaint for abuse of discretion. Ziegler v. Auke rman , 512 F.3d 777, 786 (6th Cir. 2008). Howeve r, a district court is
not require d to g rant leave to amend wher e the amendment would be futile, or in other words, wher e the amende d complaint would not be able to survive a motion to dismiss

. Miller v. Calhoun Cnty. , 408 F.3d 803, 817 (6th Cir. 2005) (citing Foman v. Davis , 37 1 U.S

. 178, 182 (1962))

. “Where a district court draw s a leg al conclusion that amendment would be futile, that conclusion is revie wed de novo .” Id . (citing Inge v . Rock Fin. Corp ., 281 F.3d 613, 625 ( 6th Cir. 2002)). II. Leave to F ile an Am ended Com plain t Rule 15(a) (2) of the Fe dera l Rules of Civil Procedur e provides that a court may fre ely g rant leave to amend a pleading when justice so require s, in order to ensure that a case is tried on its merits “ra ther than [on] the technica lities of the pleading s.” Moore v. City of Paducah , 790 F.2d 557, 559 (6th Cir. 1986). “I n deciding whether to g rant a motion to amend, courts should consider undue delay in filing, lack of notice to the oppos ing party , and futil ity of amendm en t

. ” B r u mb a l ough v. Camelot Care Ctrs., Inc. , 427 F.3d 996, 1001 ( 6th Cir. 2005).

7No. 11-1764

Fr om the outset, it bear s noting that the filing of this case (on May 29, 2009) coincided closely with the Supreme Court’s ruling in Ashcroft v. Iqbal (dec ided on May 18, 2009). 556 U.S. 662 (2009). We are sensitive to the fac t that Plaintiff’s counsel may not have had a full opportunity
t o d i ges t the s ignif

icanc e of Iqbal at t he ti me t he first complaint was filed. I ndeed, the complaint clea rly makes no attempt to adher e to Iqbal ’s enhanced pleading standard. At best , i t ref lects our prior notice-ple ading standard, beca use it conta ins only “thre adbar e rec itals of the elements of a

cause of action” and “nake d asser tions devoid of further fac tual enhanc ement”—pr ecise ly the level of plea ding tha t Iqbal

square ly reje cted. Id . at 677–78.

4 Kee ping this context in mind, g ranting Plaintiff leave to amend would have offe red him the opportunity to corr ect his pleading defic iencies s o as t o confor m with Iqbal. Unfortuna tely , Plaintiff ’s at t em pt to revise his complaint in his proposed First Amended Complaint rema ined woef ully inadequat e. Notably , Plaintiff failed to supplement his orig inal complaint with any additional fac tual alleg ations; althoug h he did at least more proper ly asser t the specific elements of his claims (in addition to adding a third claim for pr omissory estoppel). Having revie wed Plaintiff’s propo s ed Fi rst Amended Complaint, it is clea r that even his revised alleg ations did not g o bey ond a bare rec itation of the cause s of actions alleg ed. This paltry pleading was insufficient u n d er Iqbal

. Plaintiff failed to specify , inter alia , dates or even approximate time fra

mes, the individuals involved in his alleg ed re p o rt s of misconduct, the individuals involve d i n h i s termination, the specific reta liatory actions taken ag ainst him, or any

At worst, the complaint fails to meet even the notice pleading standard, beca use Plaintif

f 4 arg uably failed to e ven prope rly

alleg e the e lements of his ca uses of a ction. 8No. 11-1764

fac ts—even circumstantial fac ts—from which thi s Court could i nfer that Plaintiff was ter m i nated beca use he repor

ted the misconduct of a fellow employ ee. Acc ording ly , reg ard l es s o f the leg al merits, Plaintiff’s motion for leave to amend was futile beca use even his revised alleg ations lacke d the fac tual specific ity require d to nudg e his c omplaint “ acr oss the line from the c onceiva ble to the plausible.” Iqbal , 556 U.S. at 680 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007))

. T o the extent that Plaintiff alleg ed acts with any specific ity whatsoeve r, his allega t i o n s perta ined only to I PG’s Code of Conduct and the provisions there in that Plaintiff believed supported his claims. Howeve r, and as explained further below, Michig an l aw s trong ly disfavors wrong ful termination actions broug ht by at-will employ ees that are premised solely on a workplac e manual, code of conduct, employ ee handbook, or the like. See infra

. Be cause Michig an law does not lightly infer a binding legal agr eement from such documents, a plaintiff must alleg e some extrinsi c or circ umstantial evidenc e to infer that the employ er ei t h er i n t ended to bind itself to an enfor cea ble
contra ct or acte d in such a manner as to induce its employ ees’ relianc e on its binding promises. See id. Howeve r, beca

use the complaint was utterly devoid of any alleg ations o f fa ct b ey o nd the citations to th e C o d e of Conduct, Plaintiff provided next to no basis to justify g ranting leave to amend or , as fur

ther e x plained below, to survive Def endant’ s motion for dismis sal. III. Breac h of

Contrac t Plaintiff’s first claim is that Def endant brea ched their employ ment ag ree ment when he was terminated for repor

ting a fellow employ ee’ s misconduct. As the district court corr ectly noted, this claim depends entirely on Plaintiff’s asser tion that the Code of Conduct constituted a binding leg al
contra ct. I n support of this arg ument, Plaintiff primarily cites the Code’s provision promising that,

9No. 11-1764

“[n] o reta liation will be taken ag ainst any employ ee for raising any conce rn, question or complaint in good f aith.” To bring an action for brea ch of contra ct under Michig an law, a plaintiff must prove that (1)

a valid contra ct exis ts betwee n the parties; (2) the terms of contra ct require the perfo rm an ce of

cer tain actions; (3) a party violated the terms of the contra ct; and (4) the brea ch cause d an injury to the ag g rieve d party

. W

ebster v. E

dward D. Jones & Co., L.P. , 197 F.3d 815, 819 (6th Cir. 1999)

. Under Michig an law, contra cts for perma nent employ

ment or for an indefinite period of time

are presumptively construed to be at-will ag ree ments. Rowe v. Montgomery W ard & Co., Inc. , 473 N.W.2d 268, 271 (Mich. 1991). Her e, the parties ag ree that Plaintiff was an at-will employ ee. There fore , his at-will employ ment contra ct was subject to terminati o n a t a ny time and for any rea son. Suchodolski v. Mich. Consol. Gas Co. , 316 N.W. 2d 710, 711 (Mich. 1982). I n order to show that his employ

ment was not fre ely terminable, Plaintiff must overc o m e t h e presumption of at-will employ ment by showing , inter alia , “an express contra ct for a definite term or a provision forbidding discharg e in the absenc e of just-cause ,” or proof that there was “a promise implied in fac t of employ ment secur ity , such as employ ment for a particula

r period or to te rminate only for just-cause .” Rowe v. M

ontgomery W

ard & Co., Inc. , 473 N.W.2d 268, 271 (Mich. 1991). I n deciding whether the parties ag ree d to such leg ally enfor cea ble terms, we employ “a n o b j ec t ive theory of assent, focusing on how a rea sonable person in the position of the promisee would h av e i n t er p rete d the promisor’s statements or conduct.” Rood v. Gen. Dynamics Corp. , 507 N.W.2d 591, 598 (Mich. 1993).

10No. 11-1764

Acc ording to Plaintiff, the district court err ed by presuming that his at-will status fore closed his ability to bring a brea ch of contra ct claim. He points out that the Mi ch i gan co urts have

rec og nized that employ

ment contra cts ca

n fall somewhe re w ithin the spectrum of being purely

atwill versus purely for just-cause , beca use “par ties to an em p l o y

ment contra ct are fre e to bind themselves to whateve r termi n at i o n p rovi sions they wish.” Thomas v. John Dee re Corp. , 517 N.W.2d 265, 267 (Mich. 1994). Plaintiff contends that, althoug h he rema ined an at-will employ ee for most purposes, I P G fr ee l y modified its fre e authority to terminate, at least in part, when it promised that it would not terminate him for re porting other e mploy ees’ misconduct. Whil e Plaintiff is corr ect that a Michig an empl o y er i s fr ee to modify the terms of its ag ree ments wi t h i t s at-will employ ees, he never theless has failed to provide any authority to

overc ome the leg al analy sis used by the district court in reje cting his claim. The district court cited Dolan v. Continental Airlines , 563 N.W.2d 23, 29 (Mich. 1997), for the principle that Michig an does
not authorize a brea ch of contra ct claim that is based solely on the dissemin at i o n o f an employ ee handbook containing an implied discharg e-f or-c ause policy

. Shaughnessy , 2010 WL 2630164, at *4. The dist rict court’s citation was corre ct. Dolan clea rly states t hat,“[a] b s en t alleg ations in the pleading s that clea r l

y a n d unambiguously indicate the defe ndant’s intent to cre ate a just-cause employ ment rela tionship with all its employ ees, or in particula r with this plaintiff, we hold that [t he] plaintiff has not, as a matter of law, s t at ed a claim on which relief can be g rante d.” Dolan , 563 N.W.2d at 29 (empha sis added) ; see also Rood , 507 N.W.2d at 606 (“[ W ] h er e an employ er establishes a policy of discharg e for cause , it may become part of an employ ment contra ct only when the circ umstances (e.g ., t h e l an gu ag e in the handbook itself, or an employ er’ s oral statements or

11No. 11-1764

conduct) clea

rly and unambig uously indicate t h at t h e p arties so intended.”)

. I n the instant case , Plaintiff did not alleg e any extrinsi c or circ umstantial f acts bey ond the Code itself from which this Court could infer Def

endant’ s clea

r and unambig uous intent to cre ate the employ ment rela tionship (either with Def

endant individually or with I PG’s employ ees gen er al l y ) that Plaintiff seeks to impose. Wit hout any fac tual allegations to support this claim, Plaintiff’s complaint rests solely on lang uag e of the Code of Conduct. Howeve r, in m u l t i p l e p l ac es throug hout the Code, as well as specific ally

within its non-re taliation portion, I PG r eminds its employ ees tha t nothing in the Code “shall chang e the at-will nature of [t he] employ ment rela tionship,” and cautions that the Code “e x p re s s es in g ener al terms the standards of conduct,” but “is not a compre hensive docume n t intended

. . . [as] a descr iption of all laws and policies that apply to Company business.” The Code
notes that it only “should be used as a g uide and a resour ce to aler t [t he employ ee] to common leg al and ethical issues.” Suc h l anguag e cannot be read objectively to evince a clear and unambig uous intent to crea te a binding just-cause ag ree ment. The district court proper ly found that the holding in Dolan , as well as the lang uag e of I PG’s Code of Conduct, preve nt Plaintiff from succe eding under a brea ch of contra ct theory as a matter of Michig an law. IV. Wrongfu l Discharge in Violation of P ubl ic P olicy Plaintiff’s second claim is that he was discharg ed in violation of Michig an public policy

. The district court found that this claim could not survive dismiss al beca use Plaintiff failed to alleg e any fac ts from which to infer that Def endant ever asked Plaintiff to either conce al or to violate any law,

12No. 11-1764

and also beca

use Plaintiff failed to identify any case s to support his theory that the l aws and reg ulations he cited in support of this claim confe rre d o n h i m any rig ht of protec tion ag ainst
reta liation. Shaughnessy , 2010 WL 2630164, at *4–5. Although Michiga

n ordinarily provides that an at-will employ ee may be terminated at any time and for any rea son, the state never theless allows an at-will employ ee to challeng e a discharg e that is “so contra

ry to public policy [so] as to be actionable .” Suchodolski v. Mich. Consol. Gas Co. , 316 N.W.2d 710, 711 (Mich. 1982). A claim of discharg e in violation of public policy may rest on

o n e o f three g rounds: (1) that the employ ee was “discharg ed in violation of an expli cit leg islat i v e statement prohibiting discharg e of employ ees who act in acc ordanc e with a statutory rig ht or duty ”; (2) that the employ ee was “discha rg ed for the failure or ref usal to violate the law in the course of employ ment”; or (3) that the employ ee was “discha rged for exercising a rig ht confe rre d by a well-e stablished leg islative enac tment.” Edelberg v . Leco Corp. , 599 N.W.2d 785, 786–87 (Mich. Ct. App.1999) (citing Suchodolski , 316 N.W.2d at 711–712). Plaintiff never specifie d the theory or theories supporting his public policy discharg e claim. I n his orig inal complaint, Plaintiff only asser ted that “Michig an public policy require s employ ers to abide by fede ral and state law and prohibits employ ers from reta liating ag ainst employ ees who repor t illega l activity by their employ er.” (Compl. at 5.) I n his amende d complaint, Plaintiff was somewhat

more s p ec i fi c, alleg ing that cer tain Securities and Ex chang e reg ulations, the New York Stock E x ch an g e L isting manual, and the Sarbane s-Oxley Act “conf err ed upon [hi m] the rig ht not t o b e reta liated ag ainst for making a re port of illeg al or une thical beha vior.” (A m. Compl . at 6.)

13No. 11-1764

On appea l, Plaintiff cites Vagts v. Perry Drug Stores , 516 N.W.2d 102, 104 ( Mich. Ct. App. 1994) and Kimmelman v. Heather Downs Mgmt. Ltd. , 753 N.W.2d 265, 268 (Mich. Ct. App. 2008), for the arg ument that the Michig an courts have rec og nized source s of public policy other than those found in leg islative enac tments. Acc ording t o P l ai n t i ff, the district court there fore err ed by too

n ar rowly rea ding what qualifies as a “law” supporting a public policy discharg e claim under Suchodolski. Although Plaintiff’ s citations are acc urate , once ag ain his le g al analy sis is not. Reg ardle ss of whether the SEC Reg ulations, the NYSE manual, or the SOX Act can meet the broade r standards sug g ested by Vagts and Kimmelman , Plaintiff has never asser ted any fac ts to support the notion that he was discharg ed either bec au s e h e “fail[ ed] or ref us[ed] to violate those laws” or beca use he

a tt e mp te d to “exerc ise rig hts confe rre d by a well-e stablished le g is la ti v e e n a c tm e n t” u

n d e r th o s e la

w s . See Suchodolski , 316 N.W.2d at 711–712. At its foundation, a Michig an employ ee only has a valid public policy claim “if he was fired beca use his employ er reque sted that he b re ak t h e l aw , but he failed or ref

used to d o s o . ” He i n v. All Am. Plywood. Co. , 232 F.3d 482, 486 (6th Cir. 2000). A plaintiff may not simply cite any and all laws he alleg es wer e violated by his employ er’ s misconduct
to support a public policy wrongf u l d i s charg e claim. Rather, the “[Michiga n] Supreme Court’s

enumer ated ‘public policies’ in the c o ntext of wrong ful termination all entail an employ ee exe rcising

a rig ht g uara

nteed by law, exe cuting a duty require d by law, or refraining from violating the law.” Kimmelman , 753 N.W.2d at 268 (emphasis adde d). Supported only by vag ue factual assertions, it is impossibl e to conclude that Plaintiff took any action prote cted unde r the law s he cited. L ikewise, he has provided no a lleg ations to indicate

14No. 11-1764

that Def endant either asked him to violate those specific l aw s o r reta liated ag ainst him afte r he ref used to violate those laws. I n short, Plaintiff has cre ated no nexus bet we en t h e l aws and reg ulations and his own termination, even at a circ umstantial or specula tive level. Wit hout that link, his c omplaint only alleg es that he r eporte d misconduct internally within the company . And as the district court corre ctly noted, “Michiga n does not rec og n i z e a co mmon law cause of action for an employ ee who has been discharg ed fo r re p o rting violations of law to a superior.” Goldfadden v. W yeth Labs

. , No. 10-1799, 2012 WL 1676664, at *5 (6 t h C i r. May 14, 2012) (quoting CushmanLagerstrom v. Citiz ens Ins. Co. of Am. , 72 F. App’ x 322, 330 (6th Cir. 2003)). Be cause there is no indication in the complaint that Plaintiff attempted to act in acc ordanc e with the public policies he claimed wer e violated by his wrong ful discharg e, Plaintiff’s public policy discharg e cla im was proper ly dismiss ed. V. P rom issory Estopp el Finally , Plaintiff soug ht to add a third claim for promissory estoppel/leg itimate expectations in his motion for leave to fi l e an amende d complaint. The district court denied Plaintiff leave to amend f or futility ; the reby , it e ssentially conclude d that Plaintiff f ailed to state a c laim under Rule 12(b)( 6). See Shaughne

ssy , 2010 WL 2630164, at *6. We ag ree . I n order to preva il under a promissory estoppel theory under Michig an law, a plaintiff must establish: (1) a promise; (2) that the promisor can show rea sonably should have expected to induce

ac t i o n o f a definite and substantial char acte r on the part of the promisee; (3) that the promise produce d an actua l relianc e or forbe ara nce; and (4) that the claimed relianc e or forbe ara nce occur red

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under circ umstances requiring an enfor ceme n t of the promise in order to avoid an injusti ce. Zaremba Equip., Inc. v . Harco Nat’l Ins. Co. , 761 N.W.2d 151, 166 (Mich. Ct. App. 2008). As the district court noted, Plaintiff’s promissory estoppel claim was his strong est basis for surviving dismiss al, if only beca use Michig an does not judge promissory estoppel cl ai m s using traditional contra ct analy sis. See, e.g. , Rood , 507 N.W.2d at 606 (noting that the plaintiff need not prove a meeting of the minds or even specific knowledg e of the employ er’ s policies in order to enfor ce them under a promissory estoppel theory ). I nstead, the basis of a promissory estoppel claim
stems from whether the employ er established its policies and proce dures in such a manner as to induce its employ ees’ rea sonable, objec tive relianc e ther eon. Id

. As the Michig an courts have rea soned, when an employ er anticipates a benef i t fr o m announcing a discharg e policy , “pre sumably with a v i ew o f o btaining the benef it of improved employ ee attitudes and behavior and improve d quality of t he work forc e,” the employ er “may not [t here afte r] treat its promise as illusory .” Id . (quoting Touissant v. Blue Cross & Blue Shield , 292 N.W.2 d 880, 895 (Mich. 1980)). Acc ording ly , while an employ ee handbook—like the Code of Conduct at issue in this case —may be insufficient on its fac e to support a brea ch of contra ct claim, such evidence tends to far e better if used t o support a claim broug ht under a theory of promis sory estoppel. See id

. “The fi rs t s t ep i n analy

zing a leg itimate expectations claim

. . . is to deter mine, what , if any thing the employ er has promised.” Rood , 507 N.W.2d at 606. A promise is “a manifestation of i n t en t i o n t o act or [t o] ref rain from acting in a specified way , so made as to justify a promisee i n understanding that commitment has been made.” Id

. (citing the Restatement (Second) of Contracts

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§ 2(1) (empha sis in orig inal)). “Onc e it is deter mined that a promise has been made, the second step is to deter mine whether the promi se i s rea sonably capa ble of insti lling a leg itimate expectation of just-cause employ

ment in the employ er’ s employ ees. I n this reg ard, [] only policies and proce dures

rea sonably

rela ted to employ ee te rmination are capa ble of instilling such e x pecta tions.” Id

. As the district court corr ectly noted, althoug h Plaint i ff’s promissory estoppel claim may

succe ed at the first step, it fails at the second step, due to clea r limit ations place d on the Code by its

own terms. See Shaughness y , 2010 WL 2630164, at *6. Although Def endant issued a policy
statement indicating that it would not terminate its employ ees fo r re porting misconduct, “not all policy statements [] rise to the level of a pr omise.” Rood , 507 N.W.2d at 606. Where, as he re, a n employ er “re tains the choice ” to eith er fo l l o w or to abandon its specifie d policy , the policy is, in

rea lity , “not a promise at all.” Id

. I n other words, wher e an employ er makes known to its employ ees that “per sonnel policies are subject to unilatera l chang es by the employ er,” t h e employ ee cannot leg itimately expect “that any part i cu l ar p olicy will continue to rema in in forc e.” Touissant , 292 N.W.2d at 895. I nstead, the employ ee may only leg itimately expect that the policies in forc e at any g iven time will be applied uniformly to all. Id

. Her e, t h e C o d e o f Conduct expressly limit s its statements to informal g uidance , advises employ ees that nothing in its policies modi fies an employ ee’ s at-will status, and—most importantly

—impliedly prese rves I PG’s ability to chang e its policies at its unil at er al discretion. Reading the document as a whole, it is clea r that the Code of Conduct was intended as nothing more than a “fle x ible fra

mework for opera tional g uidance ” and not as “a perpe tually binding contra ctual obliga tion.” Rood , 507 N.W.2d at 605. Plaintiff could no t h av e l egit imately expected the non17No. 11-1764

reta liation provision to be binding g iven these limit ations. And althoug h Plaintiff complains that he

was trea ted unfairly afte r repor ting the misconduct, the complaint does not provide any alleg ations
to sug g est that I PG trea ted Plaintiff’s situation any differ ently than it has handled compar able repor ts of wrong doing. Moreove r, beca use Plaintiff has not alleg ed any fac ts bey ond the Code of Conduct’s
terms itself, this Court has no basis to believe that Def endant otherwise induced Plaintiff’s relianc e on the Code’s prof

essed policies. The district court corr ectly dismiss ed Plaintiff’s promissory estoppel claim, becaus e the d i s cl ai m ers in the Code of Conduct demonstrate that its non-re taliation provision could not h av e induced a leg itimate relianc e rising to the level of a leg ally enfor cea ble promise. Moreove r, Plaintiff has alleg ed no extrinsic fac ts from which to infer the contra

ry . CONCLUSION For the re asons stated a

bove, we AF F IRM the district court’s judg ment dismiss ing the

case and deny

ing Plaintiff lea

ve to file a

n amende d complaint.

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