If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

CLEVELAND STEGALL,

Plaintiff-Appellant,

FOR PUBLICATION

February 2, 2023

v No. 341197

Oakland Circuit Court

RESOURCE TECHNOLOGY CORPORATION,

doing business as BRIGHTWING, and FCA US,

LLC,

LC No. 2016-155043-CD

Defendants-Appellees.

Before: JANSEN, P.J., and GLEICHER, C.J. and BORRELLO, JJ.

GLEICHER, C.J. (dissenting).

The Supreme Court remanded this case for our consideration of three questions: “whether 

plaintiff has established a prima facie claim that he was discharged in violation of public policy, 

whether plaintiff’s public-policy claim is nonetheless preempted by either state or federal law, and 

whether arguments that the claim has been preempted are preserved.” Stegall v Resource 

Technology Corp, ___ Mich ___; 976 NW2d 667, 668 (2022) (Stegall II). The majority holds that 

plaintiff Cleveland Stegall’s public-policy tort claim is preempted, despite that this argument was 

not preserved. 

At its core, this case concerns a question the Supreme Court did not ask: whether the cause 

of action for public-policy tort described in Suchodolski v Mich Consol Gas Co, 412 Mich 692; 

316 NW2d 710 (1982), has continuing vitality given the Supreme Court’s subsequent decision in 

Dudewicz v Norris-Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993), overruled in part on other 

grounds by Brown v Detroit Mayor, 478 Mich 589, 594 n 2; 734 NW2d 514 (2007). My answer 

is that Dudewicz gravely wounded Suchodolski and has left a trail of confusion in its wake. But a 

fair reading of Dudewicz supports that Stegall’s public-policy tort claim is not preempted.

Suchodolski formally recognized a common-law tort claim arising from the retaliatory 

discharge of an employee who reports unlawful activity. Dudewicz narrowed Suchodolski by 

eliminating public-policy tort claims where a statute prohibits retaliation. The majority opinion

dovetails with some of the language in Dudewicz, but clashes with another portion. This case 
-2-

offers the Supreme Court an opportunity to clarify Dudewicz’s contradictory strands and to fully 

restore Suchodolski’s original holding. I write to explain why Stegall’s retaliation claim should 

survive, and why my interpretation of Suchodolski should prevail.

I. PUBLIC-POLICY TORT CLAIMS AND PREEMPTION

In Suchodolski, 412 Mich 692, the Supreme Court formally recognized a cause of action 

for wrongful discharge grounded in an employer’s violation of a well-established public-policy. 

Public-policy tort claims rest on the non-controversial notion that employees who shine a light on 

law-breaking or insist on following legal rules should not lose their jobs for having done so. After 

all, an employee who refuses to engage in illegal conduct or reveals workplace illegality 

contributes to enforcement of the rule of law. Tort remedies in these cases include a full gamut of 

compensatory damages for back pay, front pay, mental distress, and attorney fees.

In Suchodolski, the Supreme Court explained that “some grounds for discharging an 

employee are so contrary to public policy as to be actionable.” Id. at 695. Such grounds are

“[m]ost often” located “in explicit legislative statements prohibiting the discharge, discipline, or 

other adverse treatment of employees who act in accordance with a statutory right or duty.” Id. 

In a footnote to the sentence explaining that “explicit legislative statements” must underlie a 

public-policy tort claim, the Court offered these four specific examples of statutes meeting that 

description: “MCL 37.2701 . . . (Elliott-Larsen Civil Rights Act [ELCRA]); MCL 37.1602 . . . 

(Handicappers’ Civil Rights Act [HCRA]);[1] MCL 408.1065 . . . ([Michigan] Occupational Safety 

and Health Act [MiOSHA]); [and] MCL 15.362 . . . (The Whistleblowers’ Protection Act

[WPA]).” All of these statutes contain anti-retaliation provisions. Id. n 2.

A decade after deciding Suchodolski, the Supreme Court muddied that case’s contours and

shrunk its applications, creating uncertainty about when a public-policy tort case is preempted by 

an anti-retaliation statute. In Dudewicz, 443 Mich 68, the Supreme Court eliminated one of the 

four “explicit legislative statements” it had identified in Suchodolski as giving life to a publicpolicy tort claim—the WPA. Not content to confine itself to axing the WPA from Suchodolski’s 

list, Dudewicz went even farther, narrowing the reach of all public-policy claims by announcing

that “[a] public policy claim is sustainable . . . only where there also is not an applicable statutory 

prohibition against discharge in retaliation for the conduct at issue.” Id. at 80 (emphasis added). 

While Suchodolski decreed that a statute must supply the source of a public policy to sustain a 

public-policy tort claim, Dudewicz erased every statute prohibiting discharge in retaliation for the 

conduct at issue. Not only did Dudewicz fail to acknowledge that its language contradicted 

Suchodolski; it ignored that a decade earlier, it had included the WPA in its list of public-policy 

pronouncements potentially giving rise to a public-policy claim. And its reasoning for nixing 

public-policy claims when there is “a statutory prohibition against discharge in retaliation for the 

conduct at issue” was thin at best.

The plaintiff in Dudewicz alleged that he was fired because he refused to drop criminal 

assault charges against a co-employee, contrary to an order issued by his employer. Id. 71. He 

sued under the WPA and additionally pleaded a public-policy tort claim. The Supreme Court held 

 

1 This act has since been renamed the Persons With Disabilities Civil Rights Act. 
-3-

that the employee’s report of a co-employee’s violation of the law coincided with “traditional 

notions of whistleblowing,” id. at 75, despite that “[n]othing in the plaintiff’s complaint alleged 

that the defendant-employer violated any law or that the plaintiff was fired for reporting the 

defendant’s violation of law to a higher authority.” Id. at 76. The Supreme Court rejected the 

plaintiff’s public-policy tort claim, however, holding that it was “preëmpted by the application of 

the WPA.” Id. at 78.

Why was the claim preempted by the WPA in 1993 despite that in 1982, the Court 

specifically identified the WPA as a source of a public-policy tort claim? The Court dodged that 

obvious question by limiting its preemption analysis to the statement that “[a]s a general rule, the 

remedies provided by statute for violation of a right having no common-law counterpart are 

exclusive, not cumulative.” Id. 

The Court’s conclusion that the WPA is an “exclusive” remedy that automatically trumps 

a public-policy tort claim is problematic. The Legislature never designated the WPA as an 

exclusive or preemptive remedy. The Court’s “general rule” of preemption does not withstand 

scrutiny, either.

As support for its “general rule” of preemption the Dudewicz Court cited Pompey v Gen 

Motors Corp, 385 Mich 537; 189 NW2d 243 (1971). In Pompey, the Court stated that “where a 

new right is created or a new duty is imposed by statute, the remedy provided for enforcement of 

that right by the statute for its violation and nonperformance is exclusive.” Id. at 552. But the 

Pompey Court hedged with the qualifier that “[i]n the absence of a pre-existent common-law 

remedy, the statutory remedy is not deemed exclusive if such remedy is plainly inadequate[.]” Id. 

at 553 n 14. A leading treatise further clarifies the Pompey/Dudewicz “general rule,” explaining,

“Courts presume a statute is consistent with the common law, and so a statute creating a new 

remedy or method to enforce a right which existed before is regarded as cumulative rather than 

exclusive of previous remedies.” 2B Singer, Sutherland Statutes & Statutory Construction (7th 

ed), § 50:5, p 178. Only where a statute creates “a new right” and “provides the remedy to enforce 

that right” is the new remedy “not cumulative with other common law remedies.” Id. at 178-179.

The remedy section of the WPA does not declare or even hint at its own exclusivity.2 That 

said, the WPA was indeed groundbreaking legislation. Michigan was “the first state to enact a 

 

2 The remedy section of the act provides:

(1) A person who alleges a violation of this act may bring a civil action for 

appropriate injunctive relief, or actual damages, or both within 90 days after the 

occurrence of the alleged violation of this act.

(2) An action commenced pursuant to subsection (1) may be brought in the circuit 

court for the county where the alleged violation occurred, the county where the 

complainant resides, or the county where the person against whom the civil 

complaint is filed resides or has his or her principal place of business.
-4-

statute affording protection to whistleblowers from discriminatory treatment by employers.”

Young, The Whistleblowers’ Protection Act: A Look at the Statute and Proposed Modification, 46 

Wayne L Rev 1691, 1691 (2000). The act “is unique in that it prohibits employers from firing or 

discriminating against any employee because he ‘reports or is about to report’ illegal conduct in 

the workplace.” Id. But common-law rights protecting employees from retaliatory discharge and 

common-law remedies in the form of tort actions preexisted the WPA’s 1981 enactment. Id. at 

1693. See also Trombetta v Detroit, Toledo & Ironton R Co, 81 Mich App 489; 265 NW2d 385 

(1978); Sventko v Kroger Co, 69 Mich App 644; 245 NW2d 151 (1976). The WPA expanded the 

rights and remedies recognized in those cases. Contrary to Dudewicz, the rights and remedies the 

WPA codified did have “common-law counterparts” and common-law roots.

Because our courts have long recognized a common-law claim for whistleblowing, 

Dudewicz’s apparent abrogation of common-law remedies for whistleblowing in favor of purely 

statutory ones also contradicts our state’s constitution: “The common law and the statute laws now 

in force, not repugnant to this constitution, shall remain in force until they expire by their own 

limitations, or are changed, amended or repealed.” Const 1963, art 3, § 7. The Supreme Court has 

repeatedly reiterated this principle. See, e.g., Velez v Tuma, 492 Mich 1, 11-12; 821 NW2d 432 

(2012) (explaining that “[t]he common law remains in force until ‘changed, amended or 

repealed”). Courts must “not lightly presume that the Legislature has abrogated the common law. 

Nor will we extend a statute by implication to abrogate established rules of common law.” Id. 

Indeed, the Supreme Court declared in Velez, 492 Mich at 11-12: “Rather, the Legislature should 

speak in no uncertain terms when it exercises its authority to modify the common law.” (Quotation 

marks and citations omitted). 

Common-law preservation existed in 1993, when the Supreme Court decided Dudewicz. 

See, e.g., Rusinek v Schultz, Snyder & Steele Lumber Co, 411 Mich 502, 508; 309 NW2d 163 

(1981) (“[T]he no-fault act must be construed as retaining the common-law action for loss of 

consortium. The common-law action for loss of consortium in Michigan is not expressly abolished 

by the language of § 3135. If this section abolishes this common-law right it must be found to do 

so by implication. There is nothing, however, in the language of the act or its legislative purposes 

that requires such a construction.”).3 The Dudewicz Court simply ignored this principle. And the 

 

(3) As used in subsection (1), “damages” means damages for injury or loss caused 

by each violation of this act, including reasonable attorney fees.

(4) An employee shall show by clear and convincing evidence that he or she or a 

person acting on his or her behalf was about to report, verbally or in writing, a 

violation or a suspected violation of a law of this state, a political subdivision of 

this state, or the United States to a public body. [MCL 15.363.]

3 More recently, in Murphy v Inman, 509 Mich 132, 157-158; __ NW2d __ (2022), the Supreme 

Court reiterated that common-law causes of action are not implicitly abrogated by enactments 

creating similar remedies. One of the questions presented in that case was whether the enactment 

of the Business Corporation Act, MCL 450.1101 et seq., “superseded and replaced the common 

law such that no common-law fiduciary duties exist independently of [MCL 450.1541a(1)].” 
-5-

majority in this case entirely ignores the Pompey qualifier requiring that a public-policy tort

analysis include an evaluation of whether the allegedly preemptive statutory remedy is adequate.4

The majority and the Supreme Court have determined that Stegall does not have a viable

claim under the WPA. Given that Stegall cannot establish a WPA claim, I am at a loss to 

understand why, logically, his public-policy claim should be preempted. Rivera v SVRC Indus, 

Inc, 507 Mich 962, 963; 959 NW2d 704 (2021) (“Because plaintiff has not demonstrated a question 

of fact that this conduct entitles her to recover under the WPA, her public-policy claim based on 

this conduct is not preempted by the WPA.”). See also Anzaldua v Neogen Corp, 292 Mich App 

626, 631; 808 NW2d 804 (2011) (“[I]f the WPA does not apply, it provides no remedy and there 

is no preemption.”). The majority’s application of Dudewicz overlooks that Stegall has no WPA 

against FCA, the only remaining defendant.

Aside from the WPA, Stegall has invoked OSHA and MiOSHA as support for his publicpolicy claim. The majority holds that these statutes, too, are preempted according to Dudewicz. 

But there is another way to look at Dudewicz that preserves Stegall’s public-policy tort claim. 

In his concurring opinion in McNeil v Charlevoix Co, 484 Mich 69, 90 n 5; 772 NW2d 18 

(2009), Justice Michael Cavanagh expressed that “the context of the [Dudewicz] opinion shows 

that the Court intended to limit the public-policy exception only in instances in which a legislative 

enactment both provides an anti-retaliation provision and also creates an exclusive remedy.”

(Emphasis added). Justice Cavanagh would interpret Dudewicz to mean that “where the WPA 

applies, the public-policy exception to the common-law at-will employment doctrine is preempted 

because the party was afforded relief by the WPA’s exclusive statutory remedy.”

5

 Id. Even so,

 

Murphy, 509 Mich at 145-146. The Court held that it did not, echoing Velez v Tuma, 492 Mich 1, 

11; 821 NW2d 432 (2012): 

[T]he mere existence of a statute does not necessarily mean that the Legislature has 

exercised this authority. We presume that the Legislature knows of the existence 

of the common law when it acts. Therefore, we have stated that we will not lightly 

presume that the Legislature has abrogated the common law and that the Legislature 

should speak in no uncertain terms when it exercises its authority to modify the 

common law. [Murphy, 509 Mich at 153. (cleaned up).] 

This is the proper framework for evaluating whether a common-law cause of action has been 

preempted by a subsequent statutory enactment.

4 The statutory remedy for whistleblowing is not adequate for those who lose their jobs because 

they have blown the whistle only internally, because they are foreclosed from bringing a claim. 

See Manzo v Petrella, 261 Mich App 705; 683 NW2d 699 (2004). 

5 Respectfully, I disagree with Justice Cavanagh’s view that the WPA is an “exclusive statutory 

remedy.” The Legislature never designated it as such, and the words of the statute do not indicate 

that the Legislature intended to displace any existing common-law remedies for retaliatory 

discharge.
-6-

Justice Cavanagh continued, “This reasoning does not suggest that a non-retaliation provision in a 

legislative enactment would, standing alone, preempt a public-policy claim if the legislative 

enactment either did not provide a remedy or if the remedy provided was not exclusive.” Id.

Justice Cavanagh’s interpretation of Dudewicz makes sense and is true to a fair reading of 

Suchodolski. But the majority and other panels of this Court have interpreted Dudewicz as barring 

public-policy tort claims whenever a relevant statute prohibits retaliation, regardless of whether 

the statute provides an adequate remedy.

6 Not only does the majority decide that Stegall’s WPA 

claim is preempted; the majority holds that because “MiOSHA and OSHA both prohibit retaliatory 

discharge,” they, too, preempt Stegall’s public-policy tort claim.

The majority’s holding squares with an interpretation of Dudewicz focusing only on 

whether a statute prohibits retaliation, but places no weight on the exclusivity or the sufficiency of 

the statutory remedy. As Justice Cavanagh pointed out, there is language in Dudewicz suggesting 

that its holding is not as broad as the majority proposes: “A public policy claim is sustainable . . .

only where there also is not an applicable statutory prohibition against discharge in retaliation for 

the conduct at issue. As a result, because the WPA provides relief to Dudewicz for reporting his 

fellow employee’s illegal activity, his public policy claim is not sustainable.” Dudewicz, 443 Mich 

at 80 (emphasis added). If the italicized language is relevant post-Dudewicz, the majority’s 

preemption holding is surely wrong.

Although the federal OSHA prohibits retaliatory discharges of employees who report 

workplace safety violations, OSHA does not authorize private causes of action to redress 

retaliation. Taylor v Brighton Corp, 616 F 2d 256, 264 (CA 6, 1980). Suit must be brought by the 

Secretary of Labor. And the same is true under MiOSHA; the director of labor must bring the 

claim. MCL 408.1065. Neither statute claims to set forth an exclusive remedy, and neither affords 

a plaintiff like Stegall complete relief for a retaliatory termination. Because Stegall lacks an 

adequate remedy under these statutes, the majority incorrectly jettisons his public-policy tort 

claim.

As the majority would have it, the Suchodolski list of possible public-policy statements 

giving rise to a public-policy tort claim for retaliatory discharge is now reduced to two: the 

ELCRA, MCL 37.2701, and the Persons With Disabilities Civil Rights Act (PWDCRA), MCL 

37.1602. No caselaw addresses whether a public-policy tort claim premised on retaliation is

preempted by these remaining statutes, but the majority’s interpretation of Dudewicz compels the 

conclusion that it would be; both statutes contain anti-retaliation provisions. See MCL 37.2701(a) 

and MCL 37.1602(a). What then is left of Suchodolski and the public-policy tort cause of action? 

My research reveals only one published case in which a public-policy tort claim survived: Landin 

v Healthsource Saginaw, Inc, 305 Mich App 519; 854 NW2d 152 (2014). There, the claim hinged 

 

6 For further evidence that Justice Cavanagh’s view has not been adopted, see Kimmelman v 

Heather Downs Mgt Ltd, 278 Mich App 569, 573; 753 NW2d 265 (2008), citing Dudewicz, 443 

Mich at 78-80, lv den 482 Mich 989 (2008) (“[W]here there exists a statute explicitly proscribing 

a particular adverse employment action, that statute is the exclusive remedy, and no other ‘public 

policy’ claim for wrongful discharge can be maintained.”).
-7-

on MCL 333.20176a, in which “the Legislature clearly expressed a desire to further [public] policy 

by prohibiting retaliation against an employee who reports malpractice.” Landin, 305 Mich App 

at 530. Landin survives Dudewicz because MCL 333.20176a, which prohibits retaliation for 

reporting malpractice, does not create any cause of action for an employee.

In answer to the question that the Supreme Court did not ask, Suchodolski hangs on only 

by a thread. The Supreme Court mortally wounded it in Dudewicz by reading exclusivity and 

preemption into the remedial civil rights statutes passed by our Legislature between 1976 and 

1981. 

Why should the Supreme Court breathe new life into Suchodolski? By providing a private 

cause of action, tort law permits the full compensation of injured people. Absent an expressed 

legislative intent to occupy a field, tort claims do not conflict with or frustrate agency efforts to 

enforce safety or civil rights statutes. Agencies such as OSHA and MiOSHA often lack the 

resources to pursue individual claims, thereby permitting safety violations and retaliation for 

reporting them to remain unchallenged and unredressed. 

Wyeth v Levine, 555 US 555; 129 S Ct 1187; 173 L Ed 2d 51 (2009), is instructive. That 

case involved whether the federal Food, Drug, and Cosmetic Act (FDCA) preempted a state-law 

tort claim against a drug manufacturer. The United States Supreme Court held that it did not, in 

part because Congress did not explicitly preempt state-law tort actions: “If Congress thought statelaw suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption 

provision at some point during the FDCA’s 70-year history.” Id. at 574. The Wyeth majority also 

took pains to elucidate the function of tort law in the drug regulation context; the Court’s reasoning 

is just as applicable to private causes of action revealing workplace safety violations:

In keeping with Congress’ decision not to pre-empt common-law tort suits, it 

appears that the [Food and Drug Administration (FDA)] traditionally regarded state 

law as a complementary form of drug regulation. The FDA has limited resources 

to monitor the 11,000 drugs on the market, and manufacturers have superior access 

to information about their drugs, especially in the postmarketing phase as new risks 

emerge. State tort suits uncover unknown drug hazards and provide incentives for 

drug manufacturers to disclose safety risks promptly. They also serve a distinct 

compensatory function that may motivate injured persons to come forward with 

information. Failure-to-warn actions, in particular, lend force to the FDCA’s 

premise that manufacturers, not the FDA, bear primary responsibility for their drug 

labeling at all times. Thus, the FDA long maintained that state law offers an 

additional, and important, layer of consumer protection that complements FDA 

regulation. [Id. at 578-579.]

This case reveals yet another reason for reconsidering Dudewicz. The WPA prohibits 

retaliation against employees who report or are “about to report . . . a violation or a suspected 

violation of a law or regulation . . . to a public body[.]” MCL 15.362. Here, Stegall repeatedly 

complained internally to his FCA supervisors about possible asbestos exposure. A reasonable jury 

could conclude that these internal complaints triggered the decision to terminate his employment, 

even absent Stegall’s later threat to “go to OSHA.” The WPA provides Stegall with no pathway 

to present this claim, see Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 
-8-

210 (1998), and yet according to the majority, it preempts it. By forbidding public-policy claims 

when a statute “prohibits discharge in retaliation for the conduct at issue,” Dudewicz sweeps too 

broadly, foreclosing potentially meritorious actions such as this one and leaving Stegall without a 

remedy despite that a jury could find that suffered a retaliatory discharge in response to good-faith 

reports of a safety violation.

II. FCA’S PREEMPTION ARGUMENT WAS NOT PRESERVED 

In general, to be preserved for appeal an issue must have been raised in or decided by the 

trial court. Glasker-Davis v Auvenshine, 333 Mich App 222, 227-228; 964 NW2d 809 (2020). 

FCA first argued that Stegall’s public-policy tort claims were preempted by OSHA, 29 USC 651 

et seq., and MiOSHA, MCL 408.1001 et seq., in the Supreme Court. Stegall II, 976 NW2d at 668 

n 1. Whether Stegall’s public-policy claim is preempted by OSHA or MiOSHA was not raised or 

decided by the circuit court. 

Given this glaring lack of preservation, this Court’s review of the preemption issue is 

inappropriate. Our Supreme Court has explained:

Michigan generally follows the “raise or waive” rule of appellate review.

Under our jurisprudence, a litigant must preserve an issue for appellate review by 

raising it in the trial court. Although this Court has inherent power to review an 

issue not raised in the trial court to prevent a miscarriage of justice, generally a 

failure to timely raise an issue waives review of that issue on appeal. [Walters v 

Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008) (quotation marks and citations 

omitted).]

It is particularly unfair to permit FCA to achieve an affirmed summary disposition judgment based 

on an argument not included in its summary-disposition motions, and which did not form any part 

of the circuit court’s summary disposition decision. Indeed, the issue was not even raised on appeal 

in this Court. Although Stegall was allowed to address the issue in the Supreme Court, the lack of 

preservation warrants a conclusion that the unpreserved issue of preemption under OSHA and 

MiOSHA should not be considered. Were it not for the importance of the preemption question, I 

would stop there.

III. STEGALL’S PRIMA FACIE PUBLIC-POLICY TORT CASE

Stegall worked as an information and communication technology support specialist at 

defendant FCA’s Sterling Heights Assembly Plant (SHAP). A staffing agency, defendant 

Resource Technology Corporation doing business as Brightwing, assigned Stegall to work at 

defendant FCA US, LLC. Two months after he reported possible asbestos contamination in his 

workplace and requested air quality testing and safety gear, FCA notified Brightwing that it 

planned to terminate Stegall’s employment. I described the relevant facts in my dissenting opinion 

in Stegall v Resource Technology Corp, unpublished per curiam opinion of the Court of Appeals, 

issued September 24, 2019 (Docket No. 341197) (Stegall I), and repeat them here.

In April 2016, Stegall became concerned about possible exposure to 

asbestos dust when he and two colleagues were assigned to work in “the penthouse” 

of FCA’s SHAP. During a meeting with two supervisors, Stegall complained that 
-9-

he and his two coworkers developed respiratory symptoms (coughing with bloody 

mucous and itchy, watery eyes) after working in the penthouse. On April 28, 2016, 

Stegall sent the following email to his immediate supervisor, Jim Scarpace, 

Scarpace’s supervisor, Richard Spondike, first-shift IT supervisor Mitul Patel, and 

a coworker: 

These are just three (3) IDF examples of what we have to contend with 

during the cleaning. This doesn’t even include the paths or walkthroughs 

areas (air exchange, heating and ventilations areas) on getting to the IDFs, 

which have the same issues. Mind you, the pictures attached are not the worst 

offenders, but the ones we could immediately take shots of. 

A lot of the pipes are damaged, material falling out above head, and 

dust/material around these areas. 

We would like to be provided with the necessary personal protective 

equipment on handling these areas where asbestos pipes are exposed and 

damage [sic]. And some type of guarantee these items will protect our health. 

These issues were brought up in the past[] because of sickness that has 

occurred amongst a few ICT workers cleaning IDFs within the upper TCF 

substations. We want to make sure our long term health isn’t being affected 

by the dust/particles within these areas. 

FYI: The picture of my shoes is from a 10-15 minute walk within these 

areas. It’s that bad. [Emphasis added.] 

Stegall attached photographs depicting overhead pipes and insulation. 

Some of the pipes display a “DANGER” warning stating, “CONTAINS 

ASBESTOS FIBERS AVOID CREATING DUST CANCER AND LUNG 

DISEASE HAZARD.” Based on the readily visible warning combined with his 

respiratory symptoms and the dust collecting on his shoes, Stegall reached the 

logical conclusion that the penthouse might be contaminated with airborne 

asbestos.

Spondike forwarded Stegall’s photos (without the accompanying text) to an 

employee health and safety manager, who in turn forwarded them to an outside 

consultant, John Pomroy. Based only on the photos, Pomroy opined that there was 

nothing to worry about; although there were asbestos-wrapped pipes in the 

penthouse, he explained, it appeared that only fiberglass-wrapped pipes were 

damaged. This information was not shared with Stegall. Instead, Spondike 

provided Stegall and his coworkers with respiratory masks to use when they worked 

in the penthouse. Stegall was informed that FCA would obtain air quality testing 

to verify the safety of that area.

After receiving the protective gear and the reassurance that testing had been 

ordered, Stegall went on vacation. When he returned on May 16, the masks were 

gone. Stegall asked for replacements, but none were provided. He was given no 
-10-

explanation for this. Shortly after Stegall’s renewed request for reassurance about 

possible asbestos exposure, Spondike had decided to terminate Stegall’s FCA 

employment effective June 17. FCA had decided to temporarily shut down 

production at the Sterling Heights site beginning in June. However, in February, 

Spondike had informed a representative of ZeroChaos, a staffing agency, that he 

wanted to retain Stegall; Spondike was aware of the impending shut down at the 

time of their conversation.3 Before his termination, Stegall had been advised by 

Spondike that if employment needs changed at SHAP, he would be transferred to a 

different plant. Stegall was never given any reason for his termination, and no 

documentary evidence of record explains why FCA released him from 

employment. Stegall was the only employee in his department whose employment 

ended. And Spondike admitted that FCA hired someone to replace Stegall.

During the week of June 13, Stegall asked Scarpace about the status of the 

air quality testing. Scarpace indicated that he had not yet seen it. In response to 

Stegall’s persistent follow-up questioning, Scarpace stated that he did not know 

when the testing results would be available. At some time during that week, Stegall 

threatened to “go to OSHA.” Stegall was officially released from employment with 

FCA on June 17. Stegall filed a discrimination complaint with MiOSHA and 

against Brightwing on July 6. Brightwing terminated him on August 3.

3 ZeroChaos offers “workforce solutions” to FCA, managing the process of hiring 

“supplemental” employees. Stegall was employed by an agency called Brightwing, 

which supplied his résumé to ZeroChaos. ZeroChaos helped place Stegall at FCA. 

[Stegall I, unpub op at 3-5 (GLEICHER, J., dissenting).]

To establish a prima facie case of unlawful retaliation, a plaintiff must show 

(1) that he engaged in a protected activity, (2) that this was known by defendant, 

(3) that defendant took an employment action adverse to plaintiff, and (4) that there 

was a causal connection between the protected activity and the adverse employment 

action. [Landin, 305 Mich App at 533.]

When a plaintiff establishes a prima facie case, a rebuttable presumption of retaliation arises. 

Debano-Griffin, 493 Mich 167, 176; 828 NW2d 634 (2013). The employer must then offer a 

legitimate, non-retaliatory reason for the discharge. Id. A plaintiff’s claim should be submitted to 

a jury if there is a material question whether the employer’s proffered reason was a pretext for 

unlawful retaliation. Id.

As I stated my dissenting opinion in Stegall I, federal OSHA regulations express a public 

policy “protective of workers who complain or communicate concern about the possible presence 

of asbestos in a workplace. They envision that an employer will not retaliate when a worker seeks 

information or reassurance that a workplace is free from dangerous asbestos fibers. Whether a 

dangerous concentration of asbestos exists is irrelevant.” Stegall I, unpub op at 6-7 (GLEICHER, J., 

dissenting).

I explained why I believe that Stegall set forth a prima facie case under a public-policy tort 

theory as follow:
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His conduct was consistent with having exercised his right to an asbestosfree environment. Encouraging workers to report potential occupational health 

hazards without fear of discharge furthers the public policy of protecting lives and 

health, regardless of [whether] a dangerous level of asbestos actually is found. [Id. 

at 7.]

Given the public policies reflected in MiOSHA, OSHA, and their regulations, Stegall 

engaged in a protected activity when he complained and communicated concerns about possible 

exposure to asbestos in his workplace. That it was ultimately determined that there was no asbestos 

danger at the workplace does not alter the fact that he had a right to raise these concerns. Indeed, 

the Supreme Court majority stated: “In this case, plaintiff had a good-faith belief that there was a 

violation of asbestos regulations at his workplace and followed proper internal reporting 

procedures. His internal report was thus sufficient to state a public-policy claim.” Stegall II, 976 

NW2d at 668. FCA knew of Stegall’s protected activity, given that he raised the concerns to FCA.7 

There was unquestionably an adverse employment action, given that Stegall was discharged. 

The only element of a prima facie case at issue here is causation. As I explained in 

connection with the analogous WPA claim, temporal proximity alone can indicate causation in 

some cases. See Stegall I, unpub op at 7-8 (GLEICHER, J., dissenting). Temporal proximity and 

additional circumstantial evidence support a reasonable inference of causation for the purpose of 

Stegall’s public-policy claim, as reflected in the following chronology:

After receiving the protective gear and the reassurance that testing had been 

ordered, Stegall went on vacation. When he returned on May 16, the masks were 

gone. Stegall asked for replacements, but none were provided. He was given no 

explanation for this. Shortly after Stegall’s renewed request for reassurance about 

possible asbestos exposure, Spondike had decided to terminate Stegall’s FCA 

employment effective June 17. FCA had decided to temporarily shut down 

production at the Sterling Heights site beginning in June. However, in February, 

Spondike had informed a representative of ZeroChaos, a staffing agency, that he 

wanted to retain [plaintiff]; Spondike was aware of the impending shut down at the 

time of their conversation.[8] Before his termination, Stegall had been advised by 

Spondike that if employment needs changed at SHAP, he would be transferred to a 

different plant. Stegall was never given any reason for his termination, and no 

documentary evidence of record explains why FCA released him from 

 

7 As for Brightwing, Stegall alleges that he was employed jointly by Brightwing and FCA. See 

Stegall I, unpub op at 3 (GLEICHER,J., dissenting) (noting that plaintiff “worked for both FCA and 

Brightwing, a staffing agency that provided [plaintiff] to FCA in 2013”). Moreover, Stegall later 

informed Brightwing directly of the asbestos issue, before Brightwing ended its employment 

relationship with him.

8

I noted that “ZeroChaos offers ‘workforce solutions’ to FCA, managing the process of hiring 

‘supplemental’ employees. Stegall was employed by an agency called Brightwing, which supplied 

his résumé to ZeroChaos. ZeroChaos helped place Stegall at FCA.” Id. at 4 n 3.
-12-

employment. Stegall was the only employee in his department whose employment 

ended. And Spondike admitted that FCA hired someone to replace Stegall.

During the week of June 13, Stegall asked [his immediate supervisor, Jim] 

Scarpace[,] about the status of the air quality testing. Scarpace indicated that he 

had not yet seen it. In response to [plaintiff’s] persistent follow-up questioning, 

Scarpace stated that he did not know when the testing results would be available. 

At some time during that week, Stegall threatened to “go to OSHA.” Stegall was 

officially released from employment with FCA on June 17. Stegall filed a 

discrimination complaint with MiOSHA and against Brightwing on July 6. 

Brightwing terminated him on August 3. [Id. at 4-5.]

I also noted that Stegall had an “entirely favorable” employment record with Brightwing and FCA, 

including “a letter of recommendation from a supervisor at FCA highly praising [plaintiff’s] work 

and abilities . . . .” Id. at 8. Considering these strands of evidence together and viewing them in 

the light most favorable to Stegall, a genuine issue of material fact exists with respect to causation.

Thus, Stegall presented evidence establishing a genuine issue of material fact on all the 

elements of his prima facie claim. The Supreme Court did not directly instruct this Court on 

remand to consider whether Stegall presented a genuine issue of material fact related to whether 

FCA’s purported nonretaliatory reason for discharging Stegall was pretextual. See Stegall II, 976 

NW2d at 668 (directing this Court on remand to consider, among other things, “whether plaintiff 

has established a prima facie claim that he was discharged in violation of public policy,” but not 

directing this Court to address the issue of pretext). Assuming that the Supreme Court’s order 

implicitly directed us to consider pretext, I would hold that a genuine issue of material fact has 

been established. The purported nonretaliatory reason for discharging Stegall was that “FCA 

closed the entire plant when it eliminated the second shift.” Stegall II, 976 NW2d at 671 (ZAHRA,

J., dissenting). But as I noted before, before Stegall made his internal complaints about the 

asbestos issue, Spondike had conveyed that he wanted to retain Stegall, even though Spondike was 

at that point already aware of the impending shutdown. Stegall I, unpub op at 4 (GLEICHER, J., 

dissenting). Stegall was not given a reason for his termination, he was the only employee in his 

department to be let go, and Spondike admitted that FCA ultimately hired a replacement for him. 

Id. at 4-5. Viewing the evidence and reasonable inferences from it in the light most favorable to 

Stegall, a genuine issue of material fact exists regarding pretext. Accordingly, I would hold that 

he established a prima facie public-policy tort claim. But for Dudewicz, that claim should go to a 

jury.

/s/ Elizabeth L. Gleicher