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STATE OF MICHIGAN
COURT OF APPEALS


MICHAEL WAYNE STEARNS, Petitioner-Appellant, v PRO-TECH ENVIRONMENTAL & CONSTRUCTION SERVICES, INC., and DEPARTMENT OF LABOR AND ECONOMIC GROWTH, Respondents-Appellees.

UNPUBLISHED June 19, 2008

No. 270315 Montcalm Circuit Court LC No. 05-006806-AA

Before: Whitbeck, C.J., and Talbot and Fort Hood, JJ PER CURIAM. Petitioner appeals by leave granted from the circuit court's order reversing a decision by the Department of Labor and Economic Growth (DLEG) that respondent, Pro-Tech Environmental & Construction Services, Inc.,1 had violated the anti-retaliation provision of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1065, when it discharged petitioner. We reverse. I. Basic Facts and Procedural History Petitioner alleged that he was discharged from his employment with respondent in retaliation for reporting deficiencies in the safety equipment provided during an asbestos removal project at a local university, Calvin College. It was alleged that the respirators used during asbestos removal, known as the powered air purifying respirators (PAPR), did not comply with MIOSHA standards according to the university supervisor of the project. Petitioner reported the complaints to respondent at the insistence of the university supervisor. He alleged that he was terminated from his employment as a result of his complaint report. Specifically, petitioner alleged a violation of MCL 408.1065(1), which provides:

Although the DLEG is also delineated as a respondent in the caption, the dispute involves the actions of the employer only. Accordingly, the singular "respondent" refers solely to Pro-Tech Environmental & Construction Services, Inc.

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A person shall not discharge an employee or in any manner discriminate against an employee because the employee filed a complaint or instituted or caused to be instituted a proceeding under or regulated by this act or has testified or is about to testify in such a proceeding or because of the exercise by the employee on behalf of himself or herself or others of a right afforded by this act. On the contrary, respondent asserted that petitioner was lawfully discharged for his use of vulgar language and insubordination in the presence of co-workers and superiors at his place of employment and in the presence of supervising personnel at the university. The DLEG investigated petitioner's claim and concluded that respondent violated MCL 408.1065(1) by terminating petitioner after he reported MIOSHA violations. Respondent contested the findings by the DLEG, and a hearing was held before an administrative law judge (ALJ). At the commencement of the administrative proceeding, counsel for the DLEG indicated that the department selects a position in a retaliatory discharge situation. Consequently, the DLEG was aligned with the position of petitioner. Therefore, counsels for petitioner and the DLEG questioned witnesses first followed by cross-examination by respondent. The testimony presented during the three-day hearing supported the respective positions of each party. Ultimately, the ALJ ruled in favor of petitioner. In an extremely detailed decision, the ALJ found that the witnesses presented by the petitioner were credible, in particular relying on the testimony of the supervising employee from the university, Art Lillibridge, who refused to allow the asbestos respirators to be used by respondent's employees and instructed petitioner to call his superiors regarding the condition of the equipment. Respondent filed a petition for review in circuit court alleging: (1) the administrative decision was arbitrary and capricious; (2) the decision was not supported by competent, material, and substantial evidence on the whole record; and (3) the decision was based on material and substantial errors of law. Following oral argument on the petition, the circuit court ruled in favor of respondent, holding: Well, the Court has listened to arguments of Counsel, read the briefs more than once and looked at some of the cases that were cited. Based on the information that was provided to me, I think that looking at the whole record of the ALJ's fact finding, as to fact 64, that was not supported by the whole record. Based on the whole record, I do not find that normal equipment

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