Whistleblower Cases

ERNSTING v AVE MARIA COLLEGE Docket No. 265187. Submitted February 8, 2006, at Lansing. Decided March 6, 2007, at 9:00 a.m. Katherine M. Ernsting brought an action in the Washtenaw Circuit Court against Ave Maria College, alleging that the defendant wrongfully terminated her employment, in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., after she participated in a United States Department of Education (DOE) investigation of the defendant. The court, Timothy E Connors, J., granted the defendant summary disposition, concluding that the plaintiffs claim did not involve activity protected under the WPA because the DOE is not a “law enforcement agency” and therefore is not a public body to which violations may be reported under the WPA. The plaintiff appealed. The Court of Appeals held: The trial court erred by granting the defendant’s summary disposition motion. The definition of “public body” in the WPA includes law enforcement agencies. MCL 15.361(d)(u). While the WPA does not define “law enforcement agency,” the plain language of the statute indicates that the term includes federal agencies. Whether an agency is a law enforcement agency does not depend on whether the agency has the power to arrest when enforcing the law. The DOE and its Office of Inspector General have broad statutory authority to investigate and punish violations of civil and criminal laws relating to the operations of the DOE. The inspector general has access to documents and may issue subpoenas. The DOE may suspend eligibility for programs and impose civil penalties. Given these powers, the DOE is a law enforcement agency under MCL 15.361(d)(o). Because the plaintiff reported wrongdoing to a public body, she demonstrated that she was engaged in an activity protected under the WPA. Reversed and remanded for further proceedings. Zahra, J., dissenting, agreed that a federal law enforcement agency is a public body for purposes of the WPA, but disagreed that the DOE, with its Office of Inspector General, is a law enforcement agency. The term “law enforcement agency” refers to an agency that has as its primary purpose the enforcement of the general criminal laws of the jurisdiction. While the DOE has some limited law enforcement powers through its inspector general, its primary purpose is to implement the education policies of the United States government. The trial court’s judgment should be affirmed. Master and Servant — Wrongful Discharge — Whistleblowers’ Protection Act — Public Bodies — Law Enforcement Agencies. A federal agency, such as the Department of Education, that has broad authority to detect and punish violations of civil and criminal laws related to the agency’s operations is a law enforcement agency and, consequently, a public body for purposes of the Whistleblowers’ Protection Act (MCL 15.361[d][y]). Sommers Schwartz, P.C. (by Joseph A. Golden), for the plaintiff. Pear Sperling Eggan & Daniels, P.C. (by Karl V. Fink, Francyne Stacey, and Claudia Rast), for the defendant. Before: WILDER, EJ., and ZAHRA and DAVIS, JJ. WILDER, EJ. In this action brought under the Michigan Whistleblowers’ Protection Act (WEA), MCL 15.361 et seq., plaintiff appeals as of right the order granting defendant’s motion for summary disposition under MCR 2.116(C)(8) and (10). We reverse. i From September 10, 2001, to September 2003, plaintiff was employed by defendant as its director of public relations until her placement as special assistant to the president of Ave Maria College. She served in this position until her employment was terminated in July 2004. In a single-count complaint alleging wrongful termination, plaintiff alleged that defendant violated the WPA by terminating her employment in response to her reports and participation in a United States Department of Education (DOE) investigation regarding defendant’s administration of title IV student financial assistance programs during the 2000 to 2001, 2001 to 2002, and 2002 to 2003 award years. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10). Following a hearing, the trial court granted defendant’s motion. Rejecting plaintiffs reliance on Jacobson v Parda Fed Credit Union, 457 Mich 318; 577 NW2d 881 (1998), and Dolan v Continental Airlines/Continental Express, 454 Mich 373; 563 NW2d 23 (1997), the trial court determined that plaintiffs claim did not involve a report to a public body, as required by the WPA, concluding instead that the DOE is not a “law enforcement agency,” and therefore not a “public body” under the terms of the act: This Court is not persuaded that the Department of Education and its Office of Inspector General is [a] “law enforcement agency.” [Jacobson and Dolan] involve the Federal Bureau of Investigation and the Drug Enforcement Agency, respectively. These two federal agencies possess not only the authority to investigate claims, but also the authority to make arrests. Plaintiff does not provide, and this Court has found, no authority given to the Department of Education to arrest. While it may... have the authority to investigate criminal action, it does not possess the authority to effectuate enforcement of the laws and therefore it is not a “law enforcement agency.” This conclusion is supported by the common meaning of the word “enforce”: 1. to give force to; urge 2. to bring about or impose by force 3. to compel observance of.[ ] [Emphasis in original.] Accordingly, the trial court granted defendant’s motion for summary disposition. Plaintiffs motion for reconsideration was denied. Plaintiff now appeals. ii This Court reviews de novo questions of law involving statutory interpretation and statutory construction. Michigan Muni Liability & Property Pool v Muskegon Co Bd of Co Rd Comm’rs, 235 Mich App 183, 189; 597 NW2d 187 (1999); Haworth, Inc v Wickes Mfg Co, 210 Mich App 222, 227; 532 NW2d 903 (1995). This Court also reviews de novo the trial court’s grant of summary disposition pursuant to MCR 2.116(C)(8) and (10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Maiden v Rozwood, 461 Mich 109, 118 597 NW2d 817 (1999). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a complaint; a court considers only the pleadings when deciding a motion brought under this section. Maiden, supra at 119. For purposes of reviewing a motion for summary disposition under MCR 2.116(C)(8), all well-pleaded factual allegations are accepted as true and construed in a light most favorable to the nonmovant. Id. “A motion under MCR 2.116(C)(8) may be granted only where the claims alleged are ‘so clearly unenforceable as a matter of law that no factual development could possible justify recovery.’ ” Id., quoting Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992). When deciding a motion for summary disposition under MCR 2.116(C)(10), a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence submitted in the light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). Summary disposition is proper under MCR 2.116(C) (10) if the documentary evidence shows that there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A genuine issue of material fact exists when the record, giving the benefit of any reasonable doubt to the opposing party, leaves open an issue on which reasonable minds could differ. Id. hi Plaintiff argues that the trial court erred in finding that plaintiff was not engaged in an activity protected under the WPA because the DOE is not a “public body” pursuant to MCL 15.361(d)(u). We agree. A We first consider whether a federal agency, as opposed to a state or local agency, may be considered a public body under the WPA. Plaintiffs whistleblower claim is brought under MCL 15.362, which states: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action. [Emphasis added.] Activity protected under the WPA consists of (1) reporting to a public body a violation of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3) being asked by a public body to participate in an investigation. Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 279; 608 NW2d 525 (2000), citing MCL 15.362. To establish a prima facie case under the WPA, plaintiff must show that (1) she was engaged in a protected activity as set forth in the act, (2) defendant discharged her, and (3) a causal connection existed between the protected activity and the discharge. Roulston, supra at 279. MCL 15.361(d) defines a “public body” under the WPA as follows: “Public body” means all of the following: (i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government. (ii) An agency, board, commission, council, member, or employee of the legislative branch of state government. (in) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof. (iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body. (v) A law enforcement agency or any member or employee of a law enforcement agency. (vi) The judiciary and any member or employee of the judiciary. [Emphasis added.] When construing the provisions of a statute, the primary task of this Court is to discern and give effect to the intent of the Legislature: This task begins by examining the language of the statute itself. The words of a statute provide “the most reliable evidence of its intent....” If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. [Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999) (citations omitted).] The WPA does not define “law enforcement agency.” In reliance on the rule of noscitur a sociis, which stands for the principle that a word or phrase is given meaning by its context or setting, Herald Co v Bay City, 463 Mich 111, 130 n 10; 614 NW2d 873 (2000), defendant argues that the Legislature implicitly intended to exclude federal law enforcement agencies from the definition of “public body” because subsections d(i) through (iv) expressly limit the definition of “public body” to include only state and local governmental entities. We cannot agree. “Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning, and a dictionary may be consulted for this purpose.” Polkton Charter Twp v Pellegrom, 265 Mich App 88, 102; 693 NW2d 170 (2005). Black’s Law Dictionary (8th ed) defines “law enforcement” as “[t]he detection and punishment of violations of the law. This term is not limited to the enforcement of criminal laws.” Clearly, the function of detecting and punishing violations of the law is not performed solely by state and local agencies, which is reflected in the express language of MCL 15.361(d)(u). Nothing in MCL 15.361(d)(u) demonstrates the Legislature’s intent that the term “law enforcement agency” is limited to state or local enforcement agencies. “ ‘[A] court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.’ ” Hill v Sacka, 256 Mich App 443, 447-448; 666 NW2d 282 (2003) (citation omitted). Had the Legislature intended to limit the term “law enforcement agency” to mean only state and local law enforcement agencies, it could have expressly so stated, as it did in subsections d(i) through (iv), and as it has done in other statutes. “The omission of a provision in one part of a statute that is included in another part of a statute should be construed as intentional, and provisions not included by the Legislature should not be included by the courts.” Polkton, supra at 103 (citations omitted). Our interpretation of MCL 15.361(d)(v) is further supported by the language of MCL 15.362, which unambiguously provides for the reporting of violations of state and local laws as well as a “violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of. . . the United States .. . .” “Statutes in pari materia are statutes sharing a common purpose or relating to the same subject. They are construed together as one law, regardless of whether they contain any reference to one another.” Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 312; 596 NW2d 591 (1999), citing State Treasurer v Schuster, 456 Mich 408, 417; 572 NW2d 628 (1998). Because MCL 15.361(d)(u) and MCL 15.362 relate to the same subject, the WPA, and are thus read in pari materia, interpreting MCL 15.361(d)(c) in the manner advanced by defendant would render the language pertaining to the reporting of violations of federal laws in MCL 15.362 nugatory. Bageris v Brandon Twp, 264 Mich App 156, 162; 691 NW2d 459 (2004) (stating that constructions of statutes that would render any part of a statute surplusage or nugatory are to be avoided). Moreover, because MCL 15.361(d)(c) is unambiguous, we reject as unpersuasive defendant’s argument that the legislative history and House Legislative Analysis, HB 5088 and 5089, February 5,1981, reflect a legislative intent to limit the definition of “public body” to state and local agencies. It is well settled in Michigan that legislative analysis is a “generally unpersuasive tool of statutory construction,” Frank W Lynch & Co v Flex Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001), particularly given that the analyses themselves carry a warning “ ‘that they do not constitute an official statement of legislative intent,’ ” Morales v Parole Bd, 260 Mich App 29, 43; 676 NW2d 221 (2003), quoting Lynch, supra at 588 n 7. In conclusion we hold that under the plain language of MCL 15.361(d), a federal agency may qualify as a law enforcement agency and, thus, as a public body under the WPA. B We next address whether the DOE, as a federal agency, qualifies as a law enforcement agency under the WPA. We initially note that the trial court erred by determining whether an agency is a law enforcement agency exclusively on the basis of whether the agency has arrest powers to enforce the law. An “arrest” is “[a] seizure or forcible restraint” or “[t]he taking or keeping of a person in custody by legal authority .. . .” Black’s Law Dictionary (8th ed). In focusing exclusively on arrest powers, the trial court overlooked the settled principle that the Legislature designed the WPA to protect the public from unlawful conduct by corporations and governmental bodies. Anzaldua v Band, 457 Mich 530, 533; 578 NW2d 306 (1998), citing Dolan, supra at 378 n 9. It is axiomatic that a corporation or governmental body is not subject to the threat of arrest, and, as such, the power to arrest cannot be the sole factor in determining whether an agency is a law enforcement agency. Instead, we consider, as discussed earlier, the specific powers granted to the DOE to detect and punish violations of the law. The Department of Education is a department within the executive branch, 5 USC 101; 20 USC 3411, ensuring, among other things, that education issues receive proper treatment at the federal level, 20 USC 3402. Congress enacted the Inspector General Act of 1978, 5 USC Appendix, 1 et seq., in order “ ‘to more effectively combat fraud, abuse, waste and mismanagement in the programs and operations of... departments and agencies.’ ” United States Nuclear Regulatory Comm v Fed Labor Relations Auth, 25 F3d 229, 233 (CA 4, 1994) (citation omitted). “To that end, Congress established in each specified governmental agency [including the Department of Education] an Office of Inspector General, as an ‘independent and objective unit,’ charging each unit with the responsibility of conducting and supervising audits and civil and criminal investigations relating to that agency’s operations.” Id., citing 5 USC Appendix, 4(a)(1). With regard to investigative powers, the DOE Inspector General is authorized to have access to all pertinent documents and persons, and is given broad subpoena powers pursuant to 5 USC Appendix, 6. In addition, under 31 USC 3803, the DOE Inspector General is also authorized to investigate allegations that an entity filed a false, fictitious, or fraudulent claim with the DOE. “[A]fter reasonable notice and opportunity for a hearing” the DOE is authorized to “suspend or terminate the eligibility status for any or all programs under this subchapter ... of any otherwise eligible institution” or “impose a civil penalty upon such institution of not to exceed $25,000 for each violation or misrepresentation.” 20 USC 1094(c)(3). Moreover, effective December 8,2003, § 6(e) was added to the Inspector General Act of 1978 by § 812(a) of the Homeland Security Act, PL 107-296, which authorized the DOE Inspector General and assistants to carry firearms, make arrests without warrants (on the reasonable belief that a felony has been committed), seek and execute warrants, search premises on probable cause, and seize evidence, with authorization from the United States Attorney General. 5 USC Appendix, 6(e). Given these statutory powers, we conclude that the DOE, as a federal institution, falls within the definition of “law enforcement agency” in the WPA. We respectfully disagree with the dissent’s view that the term “law enforcement agency” as more narrowly construed by this Court in In re Faketty, 121 Mich App 266, 271; 328 NW2d 551 (1982), is applicable here. In Faketty, this Court interpreted the meaning of the term “law enforcement agency” as it was used in the juvenile court rule that permitted the juvenile court to order the expunction of delinquency and neglect records of juveniles. JCR 1969,13. This Court held that the term “law enforcement agency” as used within that rule referred to agencies charged with the prevention and detection of crime and the enforcement of the general criminal laws of the state, and concluded that because the Department of Corrections had authority relating “solely to the administration of penal institutions, probation, pardons, paroles and commutations and other aspects of the department’s corrections functions,” it did not have the responsibility to enforce the general criminal laws of the state. Faketty, supra at 271. We first note that Faketty is not binding on this Court. MCR 7.215(J)(1). Moreover, Faketty is readily distinguished. For example, the WPA, by its plain language, is intended to protect an employee who “reports or is about to report... a violation or a suspected violation of a law or regulation or rule ... .” MCL 15.362 (emphasis added). As noted in Clonlara, Inc v State Bd of Ed, 442 Mich 230, 239;

LEWANDOWSKI v NUCLEAR MANAGEMENT COMPANY, LLC Docket No. 268511. Submitted August 8, 2006, at Grand Rapids. Decided August 17, 2006, at 9:10 a.m. Michael Lewandowski brought an action in the Van Burén Circuit Court against Nuclear Management Company, LLC; and Consumers Energy Company. The plaintiff alleged a wrongful discharge in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., after he reported incidents at the nuclear plant where he worked to the Nuclear Regulatory Commission (NRC). Consumers was dismissed by stipulation. Nuclear Management then moved for summary disposition on the ground that the NRC is not a “public body” as defined by the WPA. The court, William C. Buhl, J., granted the motion. The plaintiff then moved to amend his complaint to claim that his discharge was wrongful because it violated public policy. The court denied the motion, concluding that the amendment would be futile. The plaintiff appealed. The Court of Appeals held: 1. The trial court did not err by concluding that the NRC is not a public body to which the WPA applies. The language and the context of MCL 15.361(d)(¿¿¿) clearly indicate that federal agencies and commissions are not included within the definition of “public body” in that part of the statute. While MCL 15.361(d)(u) includes federal law enforcement agencies within the definition of “public body,” the NRC is a regulatory agency rather than a law enforcement agency. 2. The trial court did not abuse its discretion by denying the plaintiffs motion to amend his complaint. While employment in Michigan is generally at will, an employee can bring an action for wrongful discharge if the grounds for discharge violated public policy. A public-policy claim, however, may only be sustained if there is no applicable statute prohibiting retaliatory discharge for the conduct at issue. As the trial court determined, the prohibition in 42 USC 5851 against retaliatory discharge rendered the proposed amendment futile. Affirmed. Master and Servant — Wrongful Discharge - Whistleblowers’ Protection Act — Public Bodies. A federal agency or commission that is not a law enforcement agency is not a public body to which the Whistleblowers’ Protection Act applies; a federal regulatory agency, such as the Nuclear Regulatory Commission, is not a law enforcement agency (MCL 15.361[d]). Chambers, Steiner & Sturm, P.L.C. (by William P Webster, Jr.), for the plaintiff. Straub, Seaman & Allen, PC. (by James M. Straub and Donna B. Howard), for the defendant. Before: ZAHRA, EJ., and NEFF and OWENS, JJ. PER CURIAM. Plaintiff appeals as of right a grant of summary disposition to defendant pursuant to MCR 2..116(C)(8), as well as the subsequent denial of plaintiffs motion to amend his complaint. This case arose when defendant terminated plaintiffs employment after plaintiff reported defendant to the Nuclear Regulatory Commission (NRC). We affirm. Plaintiff began working full-time for Consumers Energy Company in 1978. In 1981, he transferred to the Palisades Nuclear Plant. In July 2001, defendant began managing the station. According to plaintiffs supervisor, James Ridley, he gave plaintiff a C rating in plaintiffs 2002 year-end performance evaluation. A C rating was the lowest rating an employee could receive, and it resulted in the initiation of a 90-day performance improvement plan. Plaintiffs performance improvement plan required plaintiff to file three corrective action programs (CAPs). CAPs were designed to identify and resolve problems, and the NRC’s on-site inspector had access to the CAPs. By March 11, 2003, plaintiff had filed two of the three CAPs. On March 23, 2003, a crane operator pushed aside a “lock high radiation area” barricade while operating the crane. Plaintiff claimed that he was told not to file a CAP about the incident, so he contacted the NRC’s on-site inspector. The NRC initiated an investigation. The NRC also investigated other allegations by plaintiff. In March 2004, plaintiff applied for short-term disability. He was terminated June 25, 2004; the reason given for termination was plaintiffs failure to comply with requests for medical records, which resulted in his being absent without approval since June 21, 2004. Plaintiff filed suit against defendant and Consumers Energy under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., claiming that he was wrongfully discharged. Consumers Energy was dismissed from the lawsuit by stipulation and order. The complaint was amended by stipulation, first to add a claim under the Family and Medical Leave Act (FMLA), 29 USC 2601 et seq., then to remove references to Consumers Energy as a defendant. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10) on the ground that plaintiff could not establish a claim under the WPA because the NRC was not a “public body” as defined by the WPA. The trial court granted defendant summary disposition. Plaintiff moved to amend the complaint to add a claim of public-policy wrongful discharge. After oral argument, the court denied plaintiffs motion on the ground that amendment would be futile. Plaintiff first argues that the trial court erred when it determined that the NRC was not a public body. We disagree. A trial court’s grant of summary disposition pursuant to MCR 2.116(C)(8) is reviewed de novo. Adair v Michigan, 470 Mich 105, 119; 680 NW2d 386 (2004). Whether a plaintiff has established a prima facie violation of the WPA is also considered de novo. Manzo v Petrella, 261 Mich App 705, 711; 683 NW2d 699 (2004). Under the WPA, an employer may not discharge an employee because the employee reports a violation of a federal law to a public body. MCL 15.362. Plaintiff claimed he was discharged in violation of the act because he reported defendant’s violations to the NRC. The trial court granted defendant summary disposition because it found that the NRC, as a federal agency, was not a “public body” as defined by the act. When a statute provides a definition for a term, the term must be applied as defined. Barrett v Kirtland Community College, 245 Mich App 306, 314; 628 NW2d 63 (2001). MCL 15.361(d) defines “public body” in relevant part as: (i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government. (ii) An agency, board, commission, council, member, or employee of the legislative branch of state government. (Hi) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof. (iv) Any other body which is created by state or local authority or which is primarily funded by or through state or local authority, or any member or employee of that body. Cv) A law enforcement agency or any member or employee of a law enforcement agency. (vi) The judiciary and any member or employee of the judiciary. Specifically, plaintiff argues that MCL 15.361(d)(iii) contains three series separated by “or,” and thus the third series, “a board, department, commission, council, agency, or any member or employee thereof,” is not limited to state or local authority. In Breighner v Michigan High School Athletic Ass’n, Inc, 471 Mich 217, 232; 683 NW2d 639 (2004), our Supreme Court did not interpret a similar definition of “public body,” found in MCL 15.232(d)(iii), in the same fashion. MCL 15.232(d)(iii) provides that a public body is [a] county, city, township, village, intercounty, intercity, or regional governing body, council, school district, special district, or municipal corporation, or a board, department, commission, council, or agency thereof. The Court found that this subsection “designates several distinct governmental units as public bodies, and proceeds to include in this definition any ‘agency’ of such a governmental unit.” Breighner, supra at 232. The subsection before us ends with “or any member or employee thereof” rather than “or agency thereof.” MCL 15.361(d)(iii). Nevertheless, because the adjective “any” refers to both “member” and “employee,” the phrase “any member or employee” is a singular term like “agency,” and, thus, the difference in wording does not require an interpretation of MCL 15.361(d)(iii) different from the interpretation in Breighner. Moreover, when interpreting a clause in a statute, courts must consider the context in which the clause was used. Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521, 533; 697 NW2d 895 (2005). Here, the first subsection of MCL 15.361(d) refers to the executive branch of state government. MCL 15.361(d)(i). The second subsection refers to the legislative branch of state government. MCL 15.361(d)(ii). The first and second series of the third subsection clearly refer to local government. MCL 15.361(d)(iii). The fourth subsection refers to any other body created by or funded by or through state or local authority and, hence, does not encompass the federal government. MCL 15.361(d)(ic). Given the clearly state and local context of the first four subsections, to interpret the third series of the third subsection to include federal agencies or commissions would be to interpret the series out of context. Griffith, supra at 533. Hence, plaintiff cannot sustain his argument under MCL 15.361(d)(iii). Plaintiff also argues that the NRC, as a law enforcement agency, would be a public body under MCL 15.361(d)(c). Unlike MCL 15.361(d)(i) through (Hi), MCL 15.361(d)(u) and (vi) do not contain language hmiting their application to state or local government. Construing “law enforcement agency” under MCL 15.361(d)(c) to include a federal law enforcement agency would be consistent with the Supreme Court’s determination in Dolan v Continental Airlines/Continental Express, 454 Mich 373, 375, 382-383; 563 NW2d 23 (1997), a case in which the plaintiff reported suspected violations by third parties to the federal Drug Enforcement Agency. Therefore, the question is whether the NRC could be considered a law enforcement agency. Having reviewed the authority cited by plaintiff, we conclude that it fails to resolve the issue. Instead, we note that 44 USC 3502(5) specifically designates the NRC as an independent regulatory agency; 21 USC 872a(a) and (b)(2), 23 USC 127(a)(12)(C), and 31 USC 310(b)(2)(E) all refer to law enforcement and regulatory agencies separately, which indicates that a regulatory agency is not considered a law enforcement agency. Additionally, MCL 761.1(p) (definition of “federal law enforcement officer”) and MCL 764.15d (enumerating the power of a federal law enforcement officer to enforce state law) are both contained in the Code of Criminal Procedure, MCL 760.1 et seq., indicating that “law enforcement” refers to the prevention of criminal activities rather than the regulation of industries. Furthermore, of the 153 published Michigan cases since 1933 containing the term “law enforcement agency,” none referred to the term to define a civil regulatory agency. Words or phrases in a statute should be given their ordinary and commonly understood meanings. Campbell v Sullins, 257 Mich App 179, 188; 667 NW2d 887 (2003). Thus, the NRC is not a law enforcement agency as contemplated by the WPA. Plaintiff next argues that the trial court abused its discretion in denying his motion to amend his complaint to add a claim of public-policy wrongful discharge because plaintiff still had viable claims under the second and third prongs of Suchodolski v Michigan Consolidated Gas Co, 412 Mich 692, 694-696; 316 NW2d 710 (1982). We disagree. A trial court’s denial of leave to amend pleadings is reviewed for an abuse of discretion. Ormsby v Capital Welding, Inc, 471 Mich 45, 53; 684 NW2d 320 (2004). Leave to amend the pleadings should be freely granted to the nonprevailing party upon a grant of summary disposition unless the amendment would be futile or otherwise unjustified. Id. at 52-53. The trial court denied plaintiffs motion to amend his pleadings to include a claim of public-policy wrongful discharge on the ground that the amendment would have been futile. In Suchodolski, supra at 694-695, our Supreme Court found that although employment in Michigan was generally at will, an employee could bring suit for wrongful discharge if the grounds for discharge violated public policy. It noted that public policy is violated when (a) a statute specifically prohibits the discharge, (b) the employee is discharged for refusing to violate the law, or (c) the employee is discharged for exercising a well-established statutory right. Id. at 695-696. The first prong involves an express cause of action, while the second and third prongs involve implied causes of action. Id. However, if a statute provides a remedy for a violation of a right, and no common-law counterpart right exists, the statutory remedy is typically the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78; 503 NW2d 645 (1993). Moreover, an employee has no common-law right to avoid termination when he or she reports an employer’s violation of the law. Id. In other words, a public-policy claim may only be sustained if there is no applicable statute prohibiting retaliatory discharge for the conduct at issue. Id. at 80. Citing Driver v Hanley (After Remand), 226 Mich App 558, 566; 575 NW2d 31 (1997), plaintiff argues that if the WPA provides no remedy at all, it cannot be a plaintiffs exclusive remedy. While Driver does stand for this proposition, the trial court did not find plaintiffs proposed amendment futile on the basis of the WPA; rather, it determined that the prohibition in 42 USC 5851 against retaliatory discharge rendered the proposed amendment futile. 42 USC 5851(a)(1) prohibits an employer from discharging an employee on the ground that the employee (1) notified the employer of a purported violation, (2) refused to violate the Atomic Energy Act, or (3) caused a proceeding to commence under the act. And a public-policy violation can be premised on a violation of a federal statute. Garavaglia v Centra, Inc, 211 Mich App 625, 631; 536 NW2d 805 (1995). Hence, plaintiffs claim clearly does not survive the first prong of Suchodolski. The question is whether plaintiffs claim based on the same express statute can survive under the second or third implied prong when it could not survive under the first express prong. Citing Edelberg v Leco Corp, 236 Mich App 177, 180 n 2; 599 NW2d 785 (1999), plaintiff argues that Dudewicz only precludes a cause of action under the first prong of Suchodolski when an express statutory right exists. The footnote in Edelberg cited here by plaintiff addressed an issue not raised by either of the parties and, thus, was merely nonbinding dicta. Edelberg, supra at 183. The Edelberg Court properly addressed the plaintiffs rather convoluted argument with respect to the third prong of Suchodolski as presented, but noted in the footnote that the plaintiffs claim would not have survived under Dudewicz', its casual reference to “the first prong” did not indicate that a cause of action could survive under the second and third prongs when it failed to survive under the first prong. See id. at 180 n 2. Notably, in Dudewicz, after determining that a specific statutory prohibition against retaliatory discharge rendered a public-policy wrongful discharge claim unviable, the Supreme Court did not then analyze the public-policy wrongful discharge claim under the second and third prongs of Suchodolski. Dudewicz, supra at 79-80. Plaintiff here did not cite any case in which a public-policy wrongful discharge claim was found inapplicable because of an express statutory prohibition against discharge, but a public-policy wrongful discharge claim was then found viable under the second or third prong of Suchodolski. Even in Edelberg, supra at 184, this Court found that the plaintiffs claim under the third prong of Suchodolski failed. Therefore, plaintiffs argument fails here. Affirmed. The parties present many facts with respect to plaintiffs work performance and medical condition. The court granted summary disposition on the ground that the NRC was not a public body within the meaning of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and denied plaintiffs motion to amend his complaint because the proposed count was barred by law. Because consideration of plaintiffs work performance and medical condition is unnecessary to resolve the issues on appeal, a detailed rendition of these facts is not presented. Defendant also moved for, and was granted, summary disposition on plaintiffs FMLA count; because plaintiff has not appealed summary disposition with respect to this count, the circumstances surrounding the court’s decision on this ground are not discussed. The Dolan Court did not address whether the Drug Enforcement Agency was a “public body” as defined by the WPA. Plaintiff also relies on 42 USC 5846 to support his public-policy wrongful discharge claim. 42 USC 5846 provides that a responsible officer who fails to notify the commission of a failure to comply with a safety regulation or of a defect will be subject to a civil penalty. This statute does not confer a right on plaintiff; however, assuming plaintiff is considered a responsible officer within the meaning of the statute, it may impose a duty. Moreover, plaintiff arguably was refusing to violate this statute when he notified the NRC of the purported violations. Nevertheless, 42 USC 5846 is part of the same act as 42 USC 5851, which provides a statutory right. But see Calabrese v Tendercare of Michigan, Inc, 262 Mich App 256, 266; 685 NW2d 313 (2004), in which this Court noted that if preemption had been raised in Garavaglia with respect to the National Labor Relations Act, the Court would have found the plaintiffs state claim preempted.