Stephen B. Himmel v. Ford Motor Company

*The Honorable David A. Katz, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0321P (6th Cir.)
File Name: 03a0321p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
STEPHEN B. HIMMEL,
Plaintiff-Appellant,
v.
FORD MOTOR COMPANY,
Defendant-Appellee.
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No. 01-4277
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 99-00851—Sandra S. Beckwith, District Judge.
Argued: April 30, 2003
Decided and Filed: September 8, 2003
Before: MOORE and ROGERS, Circuit Judges; KATZ,
District Judge.*
_________________
COUNSEL
ARGUED: Robert J. Hollingsworth, CORS & BASSETT,
Cincinnati, Ohio, for Appellant. David G. Holcombe,
2 Himmel v. Ford Motor Co. No. 01-4277
BAKER & HOSTETLER, Cincinnati, Ohio, for Appellee.
ON BRIEF: Robert J. Hollingsworth, Paul R. Moran, CORS
& BASSETT, Cincinnati, Ohio, for Appellant. David G.
Holcombe, Amy L. Garrard, BAKER & HOSTETLER,
Cincinnati, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which
KATZ, D. J., joined. ROGERS, J. (pp. 16-23), delivered a
separate dissenting opinion.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff-
Appellant Stephen B. Himmel (“Himmel”) appeals the district
court’s grant of summary judgment to Defendant-Appellee
Ford Motor Company (“Ford”). Ford terminated Himmel’s
employment as the Supervisor of Labor Relations, Hourly
Personnel, and Safety in October 1997. According to
Himmel, prior to his termination, he had complained about
the labor practices that violated Section 302 of the Labor
Management Relations Act (“LMRA”), 29 U.S.C. §186,
alleging: (1) Ford improperly agreed with the United Auto
Workers (“UAW”) that ten percent of its hires would be
referrals from UAW officials; (2) Himmel was forced by Ford
to hire a referral from the UAW’s National Ford Department;
and (3) Ford improperly settled two grievances with awards
of back pay. Himmel filed suit against Ford, alleging that he
was wrongfully terminated in retaliation for his complaints
and that such termination violated the public policy of Ohio
as expressed in Section 302 of the LMRA. The district court
granted Ford’s motion for summary judgment, reasoning that
Himmel’s discharge would not jeopardize Ohio public policy
because Himmel had both participated in Ford’s violations
and committed his own independent violations of the LMRA.
Himmel filed a timely notice of appeal.

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No. 01-4277 Himmel v. Ford Motor Co. 3
Because the illegal conduct of an employee does not
automatically bar his action for a wrongful discharge in
violation of public policy under Ohio law, we REVERSE the
district court’s judgment and REMAND for further
proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
Beginning in 1977, Himmel was employed at Ford’s
Sharonville, Ohio, transmission plant (“Sharonville”), first as
a Labor Relations Specialist and then as Supervisor of Labor
Relations, Hourly Personnel, and Safety. In his capacity as a
supervisor, Himmel was responsible for all matters involving
hourly workers. Because the UAW represented Ford’s hourly
personnel at Sharonville, Himmel served as Ford’s
representative to the Union and was responsible for the daily
administration of the collective bargaining agreements
between Ford and the UAW.
According to Himmel, during his tenure as a supervisor, he
complained to Ford about Ford’s improper favoritism to
UAW officials. Specifically, Himmel maintains that he
objected to three instances of Ford’s alleged improper
conduct: (1) Ford’s agreement with the UAW that ten percent
of its nationwide hiring would be referrals from UAW
officials; (2) Ford’s decision to hire Richard Forste (“Forste”)
after Himmel refused to give priority status to Forste as a
referral from the UAW’s National Ford Department; and
(3) Ford’s handling of the settlement of an employee
grievance.
According to Himmel, Ford has long agreed that ten
percent of its national hiring would be comprised of referrals
from individual UAW officials. The UAW’s National Ford
Department gives referrals to Ford’s World Headquarters,
which in turn passes the reference along to individual plants.
Ford forces its plants to give priority status to these referrals,
according to Himmel, by refusing to support any plant that
refuses to do so when that plant is the object of Union
4 Himmel v. Ford Motor Co. No. 01-4277
1Forste was not a UAW member and d id not submit an employment
app lication, interview for the po sition, or take a skilled-trades test.
2Himmel did not specifically allege in his complaints that Ford’s
conduct was illegal, instead complaining that the National Ford
Department had no standing to file a grievance and that the National Ford
Department had no good reasons to oppose his hires — three UAW
members — when its own referral was not a UAW member.
pressure. Himmel maintains that he complained about this
ten-percent policy to his superiors on numerous occasions,
although the content and time of these complaints is unclear.
In September 1996, Ford ordered Sharonville to hire a
National Ford Department referral after Himmel had
expressly declined to hire the referral and filled all available
positions with other hires. When three journeyman electrician
positions became available in June, Himmel opted to promote
three qualified employees already working at Sharonville
rather than to hire Forste, a National Ford Department
referral. The National Ford Department informed Himmel
that they considered his hiring decision “a slap in the face.”
Joint Appendix (“J.A.”) at 135-36. Himmel had promoted the
three Sharonville employees without first requiring their
completion of a skilled-trades test, and the National Ford
Department threatened to make pre-hiring testing an issue at
Ford’s upcoming national negotiations with the UAW unless
Sharonville found a way to hire Forste. Although there were
no open positions remaining at Sharonville, Ford’s Powertrain
Operations division decided to hire Forste.1 Himmel
complained to his Powertrain Operations supervisors about
the forced hire and filed a written complaint with Ford’s
Office of General Counsel.2 In spite of Himmel’s complaints,
Ford ordered Sharonville to hire Forste, and Himmel
complied with the order.
While Ford was deciding whether to hire Forste, two
journeymen electricians at a nearby Ford plant asked to be
transferred to Sharonville plant. The electricians, Frank

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No. 01-4277 Himmel v. Ford Motor Co. 5
Kuykendall (“Kuykendall”) and Ruth Jackson (“Jackson”)
filed grievances against Ford through the UAW in October
1996. According to Kuykendall and Jackson, the collective
bargaining agreements between Ford and the UAW required
Sharonville to prefer Ford employees over non-Ford
employees applying for an open electrician position. Jackson
also filed a grievance against Ford and the UAW with the
National Labor Relations Board (“NLRB”) in December
1996. When Ford finally transferred Kuykendall and Jackson
to Sharonville in February 1997, they continued to dispute the
issue of back pay. In June 1997, Ford agreed to pay both
Kuykendall and Jackson for 420 hours of back pay, the
number of hours that Forste had worked between the date of
his hire and the day before Kuykendall and Jackson were
transferred to Sharonville.
Himmel alleges that, upon learning of the settlement, he
immediately complained to his boss that “it ‘stinks’ and is
‘illegal.’” J.A. at 176 (Himmel Aff.). Moreover, a few weeks
later, Himmel informed a Powertrain Operations official that
the settlement violated “federal law” when she telephoned
him to ask whether he had issued the settlement payment.
According to Himmel, Ford had agreed prior to the settlement
that only Jackson, the more senior employee who would have
received Forste’s position, had standing to grieve Ford’s
decision to hire a non-Ford-employee applicant at
Sharonville. According to Himmel, Kuykendall was not
entitled to a remedy, and likely received one only because he
was married to the niece of the National Ford Department
official who negotiated the settlement. Moreover, Himmel
maintained that under the terms of the labor contract the back
pay award should have extended back only to the UAW’s
latest refusal of Ford’s settlement offer, not to Forste’s start
date.
A few days after Himmel initially complained about the
impropriety of the Kuykendall settlement, Ford began
investigating Himmel to determine whether he had
improperly promoted UAW collective bargaining
6 Himmel v. Ford Motor Co. No. 01-4277
3Although the parties discuss at length the facts surrounding F ord’s
dec ision to terminate Himmel, these facts are not dispositive to our
resolution of the case.
representatives.3 According to Ford, it concluded that
Himmel had committed seven separate violations of Ford
policy which could have subjected Ford to criminal and/or
civil liability. Ford decided that discharge was the
appropriate penalty and terminated Himmel’s employment in
October 1997.
Himmel filed an action against Ford in October 1999,
alleging a single count of wrongful discharge based on Ohio’s
public policy exception to the employment-at-will doctrine.
Himmel argues that Ford’s asserted grounds for his discharge
were pretextual and maintains that the promotions he gave
were legitimate and previously approved by Ford labor
officials. According to Himmel, Ford actually terminated him
in retaliation for his complaints about Ford’s conduct in
violation of Section 302 of the LMRA, which prohibits
employers and their agents from providing “any . . . thing of
value” to a union or union official. 29 U.S.C. § 186(a).
Himmel maintains that Ford’s violations implicated Ohio
public policy and therefore permitted his wrongful discharge
action.
The district court granted Ford’s motion for summary
judgment, concluding that Himmel’s recovery for wrongful
discharge was barred by Himmel’s participation in Ford’s
violations of Section 302 and by his own violations of Section
302. Himmel filed a timely notice of appeal.
II. ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment
de novo. Equitable Life Assurance Soc’y of the U.S. v. Poe,
143 F.3d 1013, 1015 (6th Cir. 1998). Summary judgment is

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No. 01-4277 Himmel v. Ford Motor Co. 7
4Dive rsity exists between H immel, an Ohio citizen, and Ford , a
business that is incorporated in and has its principal p lace of business in
states other than Ohio.
appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact.” Fed. R. Civ. P. 56(c). A dispute over a
material fact is not considered “genuine” unless “a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(quotation omitted). In deciding whether summary judgment
was appropriate, we view all evidence in the light most
favorable to the nonmoving party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In reviewing a grant of summary judgment, we employ the
same legal standard that the district court applied. Equitable
Life Assurance Soc’y, 143 F.3d at 1015. Because we are
sitting in diversity,4 see 28 U.S.C. § 1332, we apply the law,
including the choice of law rules, of the forum state. Hayes
v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir.
2001) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941)). Here the parties agree that the substantive
law of Ohio governs. Because the question at issue has not
yet been resolved by the Ohio courts, we must attempt to
predict what the Ohio Supreme Court would do if confronted
with the same question. Stalbosky v. Belew, 205 F.3d 890,
893-94 (6th Cir. 2000).
B. Greeley Claims: Ohio’s Public Policy Exception to
Employment at Will
Ohio refers to claims of wrongful discharge in violation of
public policy as Greeley claims. See Greeley v. Miami Valley
Maint. Contractors, Inc., 551 N.E.2d 981 (Ohio 1990),
overruled in part by Tulloh v. Goodyear Atomic Corp., 584
N.E.2d 729 (Ohio 1992). In Greeley, Ohio first recognized
8 Himmel v. Ford Motor Co. No. 01-4277
that “public policy warrants an exception to the employment-
at-will doctrine when an employee is discharged or
disciplined for a reason which is prohibited by statute.” Id. at
986. The Ohio Supreme Court gradually expanded the scope
of Greeley actions, ultimately articulating four elements that
a plaintiff must prove to establish a public-policy claim:
1. That [a] clear public policy existed and was
manifested in a state or federal constitution, statute
or administrative regulation, or in the common law
(the clarity element).
2. That dismissing employees under circumstances like
those involved in the plaintiff’s dismissal would
jeopardize the public policy (the jeopardy element).
3. The plaintiff’s dismissal was motivated by conduct
related to the public policy (the causation element).
4. The employer lacked overriding legitimate business
justification for the dismissal (the overriding
justification element).
Collins v. Rizkana, 652 N.E.2d 653, 657-58 (Ohio 1995)
(quoting Henry H. Perritt, Jr., The Future of Wrongful
Dismissal Claims: Where Does Employer Self Interest Lie?,
58 U. Cin. L. Rev. 397, 398-99 (1989)).
To decide whether summary judgment for Ford was
improper, we must consider whether Himmel has established
a genuine issue of material fact as to each element of his
Greeley claim. As an initial matter, we note that the issue of
clarity has been resolved in Himmel’s favor; Ford concedes
on appeal “that Section 302 of the LMRA embodies a
sufficiently clear public policy to serve as the foundation for
a wrongful discharge claim.” Ford Br. at 33-34. Moreover,
it is clear that Himmel has established a genuine issue of
material fact as to both causation and overriding justification.
See Collins, 652 N.E.2d at 658 (explaining that, under Ohio

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No. 01-4277 Himmel v. Ford Motor Co. 9
law, these two Greeley elements are questions of fact for the
jury). With respect to causation, Ford argues that Himmel
was terminated for violating Ford company policy and the
policy of the LMRA, but Himmel has presented contrary
evidence suggesting his termination was motivated by
Himmel’s complaints about Ford’s violations of the public
policy of the LMRA. Similarly, Ford has introduced
evidence that Himmel engaged in wrongful conduct which
amounted to a legitimate overriding business justification for
dismissing Himmel. Himmel counters this argument with
evidence that his conduct was in accord with company policy
and the law. In light of the parties’ disputes about the facts
and how to interpret them, we conclude that Himmel
established a genuine issue of material fact as to the causation
and overriding justification elements of his Greeley claim.
Therefore, our inquiry will focus on the jeopardy element of
Himmel’s Greeley claim.
1. Jeopardizing Ohio’s Public Policy
The Ohio Supreme Court characterizes the jeopardy inquiry
as a question of law for the court. Id. Therefore, for
summary judgment purposes, we must determine whether
dismissing employees under the circumstances of Himmel’s
dismissal would jeopardize the clear pubic policy of Section
302. Ohio has yet to adopt a clear analytical framework for
analyzing jeopardy, and discussions of this element by Ohio
courts are often quite brief. However, Henry H. Perritt, Jr.,
who originally articulated the analytical framework that was
subsequently adopted by the Ohio Supreme Court for Greeley
claims, has identified three steps of jeopardy analysis:
(1) determine “what kind of conduct is necessary to further
the public policy” at issue; (2) decide whether the employee’s
actual conduct fell within the scope of conduct protected by
this policy; and (3) consider whether employees would be
discouraged from engaging in similar future conduct by the
threat of dismissal. Perritt, supra, at 408. Given the Ohio
Supreme Court’s reliance on Professor Perritt’s articulation of
the jeopardy element in Collins and subsequent cases
10 Himmel v. Ford Motor Co. No. 01-4277
involving Greeley claims, we believe that Perritt’s framework
of jeopardy analysis provides guidance in our analysis of the
facts at hand.
Section 302 of the LMRA provides that “[i]t shall be
unlawful for any employer . . . to pay, lend, or deliver, or
agree to pay, lend, or deliver, any money or other thing of
value . . . to any labor organization, or any officer or
employee thereof, which represents, seeks to represent, or
would admit to membership, any of the employees of such
employer who are employed in an industry affecting
commerce.” 29 U.S.C. § 186(a). When Congress enacted
Section 302, it was “concerned with corruption of collective
bargaining through bribery of employee representatives by
employers, with extortion by employee representatives, and
with the possible abuse by union officers of the power which
they might achieve if welfare funds were left to their sole
control.” Arroyo v. United States, 359 U.S. 419, 425-26
(1959) (footnotes omitted); see Turner v. Local Union No.
302, Int’l Bhd. of Teamsters, 604 F.2d 1219, 1227 (9th Cir.
1979) (“The dominant purpose of § 302 is to prevent
employers from tampering with the loyalty of union officials
and to prevent union officials from extorting tribute from
employers.”). In short, the public policy of Section 302 can
be described as preventing corruption in union-employer
relationships.
Corruption in union-employer relationships will often not
come to light in the absence of reporting by an insider in the
process. Therefore, to achieve the policy goal of Section 302,
employees must be in a position where they are able to
articulate their observations and suspicions of such
corruption. See, e.g., Kulch v. Structural Fibers, Inc., 677
N.E.2d 308, 324 (Ohio 1997) (suggesting that Ohio needs
employees to report legitimate health and safety concerns to
further Ohio’s policy favoring workplace safety), abrogation
on other grounds recognized by Krickler v. Brooklyn, 776
N.E.2d 119 (Ohio Ct. App. 8th Dist. 2002); Jamison v.
American Showa, Inc., 99CAE-03-014, 2000 WL 1404, at

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No. 01-4277 Himmel v. Ford Motor Co. 11
*11 (Ohio Ct. App. 5th Dist. Dec. 16, 1999) (noting that
employee reporting of an employer’s environmental
violations benefits “the health and safety of an entire
community”). Reporting is essential to furthering the policy
goals of a statutory provision like Section 302 because one
can imagine any number of circumstances where corruption
would likely go unnoticed in the absence of employee
complaints.
Having determined that employee complaints of conduct
thought to violate Section 302 are essential to furthering the
purpose of that provision, we proceed to evaluate whether
Himmel’s conduct fell within the scope of employee
complaints protected by the policy of preventing corruption
in union-employer relationships. No Ohio law suggests that
Himmel needed to invoke a specific statute as a basis for his
complaints of wrongdoing at the time he complained to Ford.
Moreover, no Ohio law suggests that, at the time of his
complaint, an employee must be certain that the seemingly
inappropriate conduct is actually illegal. See Fox v. City of
Bowling Green, 668 N.E.2d 898, 902 (Ohio 1996) (explaining
in the context of the Ohio Whistleblower Statute, Ohio
Revised Code § 4113.52, that “requir[ing] that an actual
violation must occur for a whistleblower to gain protection
leads to nonsensical results which are unjust, unreasonable,
and contrary to the spirit of the statute and public policy”).
Rather, an employee simply must have had a “good faith
belief that [his] complaint was valid” at the time of his
complaint. Kulch, 677 N.E.2d at 324; Pytlinski v. Brocar
Prods., Inc., 760 N.E.2d 385, 386 (Ohio 2002) (allowing a
Greeley claim where an employee complained of conduct that
he “believed to be in violation of the Occupational Safety and
Health Administration . . . regulations”). Employees should
be encouraged to complain about their employers’ potentially
illegal conduct, even when they are not certain that the
conduct is improper as a matter of law. Requiring employees
to do legal research prior to making a complaint would
contravene Ohio’s public policy by depriving employees of
a remedy for wrongful discharge whenever they object to
12 Himmel v. Ford Motor Co. No. 01-4277
5Ford does not co unter H imme l’s factual allegations that he objected
to the ten-percent p olicy, the Forste hiring, or the Kuykendall and Jackson
settlements. Instead Ford suggests that Himmel’s conduct did no t fall
within the scope of Section 302’s policy because (1) Himmel participated
in Ford ’s alleged wrongdoing, (2) Himmel engaged in co nduc t equally
violative of Sec tion 302’s policy against corruption in union-employer
relations, and (3) Ford’s conduct of which Himmel complained was not
actually illegal. At issue in this inquiry, however, is only H imme l’s
conduct in comp laining about Fo rd’s potentially illegal activities.
Himmel’s own alleged wrongdoing is not relevant to our analysis of
whether his complaints fell within the scope of conduct protected by
Section 302 . Mo reover, as discussed above, Himme l was not obligated
to do legal research before complaining about apparent corruption.
apparently inappropriate conduct before doing adequate
research.
Viewing the facts in the light most favorable to Himmel,
we conclude that Himmel’s complaints about the ten-percent
policy, the hiring of Forste, and the Kuykendall settlement
were conduct furthering the policy of Section 302.5 These
complaints all implicate Ford’s relationship with the UAW
and involve Ford’s alleged preferential treatment of UAW
referrals and employees with UAW connections. Because all
three instances of Ford’s alleged misconduct implicate the
potential corruption of union-employer relationships,
Himmel’s objections constitute conduct within the scope of
Section 302.
Finally, we recognize that permitting Ford to dismiss
Himmel in retaliation for Himmel’s complaints about Ford’s
potential corruption of union-employer relations would
discourage other Ford employees from complaining about
future conduct by Ford that threatened further to corrupt those
relations. See Kulch, 677 N.E.2d at 324 (explaining that
allowing an employer to dismiss an employee for filing a
complaint about unlawful practices would deter other
employees from reporting legitimate concerns); Perritt, supra,
at 408 (“The third substep [of jeopardy analysis] is to decide
if the threat of dismissal is likely in the future to discourage

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No. 01-4277 Himmel v. Ford Motor Co. 13
the employees from engaging in similar conduct. The answer
to the third question almost always will be ‘yes.’”).
Therefore, because employee reporting of employer
activities that might violate Section 302 is conduct necessary
to further the policy of Section 302, because Himmel’s
conduct falls within the scope of this policy, and because
Ford’s dismissal of Himmel would discourage other
employees from complaining about conduct potentially
corrupting union-employer relations, we conclude that the
facts viewed in the light most favorable to Himmel establish
under Ohio law “[t]hat dismissing employees under
circumstances like those involved in [Himmel’s] dismissal
would jeopardize the public policy” behind Section 302.
Collins, 652 N.E.2d at 657 (internal quotation omitted).
2. Conduct Barring a Greeley Claim
Although the above analysis indicates that Himmel has
established jeopardy for purposes of his Greeley claim, Ford
nevertheless maintains that Himmel’s alleged violations of
Section 302, as well as his participation in Ford’s alleged
violations of Section 302, preclude this court from finding
that the jeopardy element is met. According to Ford, this
court should therefore affirm the district court’s grant of
summary judgment for Ford on the jeopardy element of
Himmel’s Greeley claim.
The jeopardy element of a Greeley claim takes into account
a plaintiff’s conduct only to the extent necessary to determine
whether it falls within the scope of conduct necessary to
further the public policy at issue. See Perritt, supra, at 408.
In this case, employee complaints of employer activities that
are contrary to the public policy of Section 302 are essential
to furthering the purposes of that statute. We therefore look
only at Himmel’s reporting of complaints; it is not necessary
for the purposes of jeopardy analysis to examine any of
Himmel’s allegedly improper conduct. Moreover, because
Ohio describes the jeopardy inquiry as a question of law for
14 Himmel v. Ford Motor Co. No. 01-4277
the court, Collins, 652 N.E.2d at 658, at the summary
judgment stage, the jeopardy inquiry serves only to determine
whether public policy would be jeopardized by permitting an
employer to dismiss an employee on the facts viewed in the
light most favorable to a plaintiff employee.
We do recognize that Himmel’s alleged wrongful conduct
may be relevant to the resolution of his Greeley claim in other
respects, however. Himmel’s ability to recover under Greeley
will be impacted by his own alleged violations of Section 302
because such violations are likely relevant to the elements of
causation and overriding justification. It would be difficult
for an employee to show that his dismissal was “motivated by
conduct related to the public policy” at issue if his employer
could point to the employee’s illegal conduct as the cause for
dismissal. Collins, 652 N.E.2d at 657 (internal quotation
omitted). Similarly, it would be difficult for an employee to
establish the absence of a legitimate overriding business
justification for his termination if the employee has violated
company policy and federal law. In this sense, Ford’s
allegations that Himmel violated Section 302 are relevant to
the outcome of Himmel’s Greeley claim. However, because
Himmel has demonstrated a genuine issue of material fact
with respect to the elements of causation and overriding
justification, summary judgment was not appropriate.
Because we do not believe that Ohio law regards either
complicity in an employer’s wrongdoing or independent
wrongdoing as an automatic bar to Greeley claims, the district
court erred by concluding that Ford was entitled to summary
judgment.
III. CONCLUSION
For the reasons explained above, we conclude that the
district court erred in granting Ford summary judgment on
grounds that Himmel’s Greeley claim was barred by
Himmel’s own alleged violations of Section 302. Himmel
has established jeopardy as a matter of law and, viewing the

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No. 01-4277 Himmel v. Ford Motor Co. 15
facts in the light most favorable to Himmel, we conclude that
there are genuine issues of material fact as to causation and
overriding justification. For these reasons and because the
clarity of Section 302’s policy is not in dispute, we
REVERSE and REMAND the district court’s judgment for
further proceedings consistent with this analysis.
16 Himmel v. Ford Motor Co. No. 01-4277
______________
DISSENT
______________
ROGERS, Circuit Judge, dissenting. I respectfully dissent,
because in my view Himmel has failed to establish the
jeopardy element of Greeley. That element requires us to
determine whether “dismissing employees under
circumstances like those involved in the plaintiff’s dismissal
would jeopardize the public policy.” Collins v. Rizkana, 652
N.E.2d 653, 657 (Ohio 1995).
As an initial matter, I would apply the standard for making
the jeopardy determination that the Ohio Supreme Court has
in fact used in a similar case, rather than one drawn from
Professor Perritt’s law journal article, although the analysis
under either should probably lead to the same conclusion. In
Wiles v. Medina Auto Parts, 773 N.E.2d 526 (Ohio 2002), the
Ohio Supreme Court applied the following standard: a
Greeley plaintiff must show that disallowing his or her claim
would seriously compromise the objectives of the law that
provides the policy source for the claim. See id. at 531
(“[W]e must assess whether the absence of a cognizable
Greeley claim based solely on a violation of the FMLA would
seriously compromise the Act’s statutory objectives by
deterring eligible employees from exercising their substantive
leave rights.” (emphasis added)).
Given that the intent of Section 302 of the LMRA—the
statute whose policy Himmel relies on—is essentially to
prevent employers and unions from corrupting one another,
the inquiry in the present case should concern whether
denying Himmel’s Greeley claim would seriously
compromise Section 302’s policy against corruption. Himmel
has not adequately shown that it would do so.
An anti-corruption policy is clearly furthered when an
employee exposes his employer’s corrupt practices to an

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No. 01-4277 Himmel v. Ford Motor Co. 17
1For example, according to the factual statement in Fox v. City of
Bowling Green, 668 N.E.2d 898 (O hio 1996), the plaintiff reported “that
he believed some laws may have been violated,” id. at 900 (emphasis
added), and this was apparently enough for a W histleblower Statute claim.
Similarly, in Kulch v. Structural Fibers, Inc., 677 N.E .2d 3 08 (Ohio
1997), the court was not deterred by the fact that OSH A found the
employer to be in violation of regulations other than those the plaintiff
had accused the employer of violating. See id. at 310 .
2See Kulch, 677 N.E.2d at 328 (continuing the expansion of the
Greeley cause of action by holding that the Whistleblower Statute does
not preempt Greeley claims based on whistleblowing). But see Wiles, 773
N.E.2d at 534 (holding that a plaintiff may not bring a Greeley claim that
is based solely on the public policy embodied in the federal Family and
Med ical Leave Act, because the remedies provided in the federal act are
adequate).
outside enforcement authority. It may also be furthered,
albeit less certainly, when an employee exposes such
practices to authorities within the company, and Ohio courts
allow Greeley claims in such cases. See Pytlinski v. Brocar
Prods., 760 N.E.2d 385, 388 n.3 (Ohio 2002). This assumes,
however, that the employee is truly blowing the whistle,
telling people who have the power to change things that
something illegal is going on, so that those people can choose
either to correct the problem or become culpable themselves.
But if an employee complains about a practice because he
thinks it a poor policy choice, say, and alleges no corruption
or illegality, then those to whom he complains will
presumably have no reason to suspect such evils, and Section
302’s anti-corruption policy will not be furthered by his
complaint.
A preliminary issue, then, is the degree of specificity with
which an employee must complain of his or her employer’s
wrongdoing. While Ohio cases have not discussed this matter
explicitly, the way that the Supreme Court of Ohio has treated
certain cases,1 as well as its generally expansive attitude
toward Greeley claims,2 indicate that an Ohio court would not
require that Himmel have specifically referred to the statute
18 Himmel v. Ford Motor Co. No. 01-4277
3The only reference I find regarding Himm el’s motivation for not
hiring Forste is a statement by Rich Freeman, a Labor R elations Specialist
at Ford’s Powertrain Operations Division, who said that Himmel opted
against Forste because he preferred “insiders” to “outsiders.” See J.A. at
189.
4The record indicates that Himmel did not complain that Ford’s
action was illegal. Instead, he questioned why Ford would listen to the
UA W ’s National Ford Department (“NFD”) when the latter had no
standing to file a grievance, and he argued that it was illogical for the
NFD to oppose his hires, given that all three were UAW members and
Forste (as an applicant, only) was no t a U AW memb er. See J.A. at
405–06.
at issue. More general allegations may suffice, but to find a
serious implication of a statute’s policy, the employee should
at least have alleged that the employer has been acting
illegally in a context that shows a direct concern with the
policy underlying the statute. Anything less than this would
provide a public policy cause of action protecting complaints
that do not promise to alert authorities about illegality, and
hence do not implicate public policy.
In the present case, Himmel brings forward three things that
he complained about: Ford’s unwritten agreement with UAW
that 10% of Ford’s nationwide hiring will be referrals from
individual UAW officials (“10% policy”), the hiring of
Forste, and the settlement with Kuykendall. Regarding the
10% policy, the record indicates only that Himmel
“complained” to certain superiors within Ford.3 Similarly,
the record is largely silent as to why Himmel initially opted
not to hire Forste, and though Himmel complained later about
being required to do so,4 there is no indication that his
complaints amounted to anything more than “the
quintessential employee beef,” that “management has acted
incompetently.” Murray v. Gardner, 741 F.2d 434, 438 (D.C.
Cir. 1984). The following excerpt from Himmel’s deposition
is pertinent:

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No. 01-4277 Himmel v. Ford Motor Co. 19
Q. The complaint that you made to [Powertrain
Operations Division officials, about Forste’s hiring], did
it include a reference to any specific violation of the
labor laws, or Labor Management Relations Act, or any
other specific labor law?
A. Specifically, no, but I think I may have mentioned
that [Forste] wasn’t covered under our contract either
from an EEO or NLRB standpoint.
Q. That was not a complaint that the company in
doing this is violating such and such a statute, that was
not the nature of your complaint?
A. I didn’t say that.
Q. Did you say that with respect to any complaints or
objections that you may have made concerning any of the
company’s actions at any time?
A. Oh, I think I said it with respect to the
[Kuykendall/Jackson] grievance settlement, that I
thought that was improper.
Q. Question was, [did you allege that it was] a
violation of a specific statute[?]
A. I complained that it violated federal law.
J.A. at 407–08. This establishes that Himmel complained of
illegality only in relation to the Kuykendall settlement, and
even then his complaint concerned only “federal law.” On the
basis of this, it is apparent that the policies of Section 302
would not be seriously jeopardized if we disallowed
Himmel’s Greeley claim based on his complaints about the
10% policy and the Forste hiring. With respect to the
Kuykendall settlement, however, Himmel’s complaints in that
instance at least invoked “federal law.” It is questionable
whether this is sufficient to assert a Greeley claim. Assuming
that it is, the inquiry then becomes whether Himmel
20 Himmel v. Ford Motor Co. No. 01-4277
5As the majority no tes, an employee bringing a Greeley claim need
not show that his or her employer was actually violating the law in
question; rather, the employee need show only that the belief was
reasonable. The rationale for the standard is that the alternative
standard— to require a whistle-blowing employee to show that he or she
reported an actual violation—would mean that “each whistleblower
would have to become equal parts policeman, prosecutor, judge, and jury.
A whistleblower could never be certain that a statute has been actually
violated until the pe rpetrator was found guilty in court.” Fox, 668 N.E.2d
at 902 (em phasis in original).
I would add, however, that it makes sense to apply the reasonable
belief standard more stro ngly where the law is clear and the emplo yee is
mistaken as to the facts, than to a situation where the facts are clear and
the employee is mistaken as to the law. Where factual matters are
concerned, it would be burdensome to require that a concerned employee
investigate until he or she was positive that something had happened.
Hence the law p rotects an employee’s reaso nable belief that certain
actions occurred—actions that, if shown, would be clearly illegal.
Interestingly, the Fox court, in illustrating why a reasonable belief
standard m akes sense, po sited just such a situation:
Suppose that a dispatcher of a taxi company is told by a n
on-duty driver that the driver is drunk. The employee believes
that the driver does indeed sound intoxicated. Does the
dispatcher need to chase down the driver, perform field sob riety,
breathalyzer and blood tests before he may report to his
supervisor that the driver is driving while intoxicated?
Id. In situations like this, the rationale underlying the reasonable belief
standard is in full force, and should be app lied liberally.
On the other hand, where the employer adm its to what the employee
claims it is doing (and hence the facts are undisp uted), and the dispute is
instead over whether what the employer is doing is illegal, the reasonable
belief standard m akes less sense b ecause the em ployee is merely arguing
with the employer about something the employer already knows about,
and the employee is not “exposing” anything. (On the other hand, where
the employee does not merely complain of illegality to his or her
supervisors, but reports the suspected violation to som e regulatory entity
outside the employer, the reasonab le belief standard sho uld apply just as
strongly to legal m istakes.)
The Ohio co urt dec isions, then, could also be read to allow Greeley
claims where an employee reasonably believes that the employer has done
something, where if the emp loyer actually did it, the employer would be
reasonably believed5 that Ford’s settlement payment to

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No. 01-4277 Himmel v. Ford Motor Co. 21
in violation of the law. See, e.g., Sab o v. Scho tt, 639 N.E .2d 7 83 (Ohio
1994) (holding that a Greeley claim was stated where a complaint alleged
an act which, “if proven to be true, would constitute conduct on the part
of the defendants which violates the public policy of this state”).
Kuykendall violated Section 302.
Ford argues that the settlement could not have violated
Section 302 because an employer’s conferral of an
“intangible” benefit—here, union official George Mason’s
satisfaction in securing an allegedly-improper settlement
payment for his niece’s husband—cannot constitute a “thing
of value” under that section. Ford’s authority for this
proposition is United States v. Cervone, 907 F.2d 332 (2d Cir.
1990), in which an employer had delivered a bribe through a
union official to a third party, and the Second Circuit held that
any benefit the union official received from being the conduit
for the bribe did not constitute a sufficiently tangible “thing
of value.” Id. at 347. But Cervone does not stand for the
proposition that an intangible benefit—that is, a benefit that
is not in the form of direct material enrichment—can never be
a “thing of value”; rather, any benefit received in that case
was simply too evanescent. See id. (“[I]t is anything but clear
what intangible benefit [the union official] received, and that
benefit thus seems not only intangible but also
unidentifiable.”). Further, courts have held that more
substantial intangible benefits can qualify, even where (as in
Cervone and in the present case) the direct material benefit
went to a third party. See United States v. DeBrouse, 652
F.2d 383, 388 (4th Cir. 1981) (holding that a union official
had received a “thing of value” where an employer had
obeyed the official’s command to deliver weekly payments to
a third party “or else,” and the official had received the
benefit of being able to command the employer’s obedience).
The question in third-party beneficiary cases, then, is
whether the intangible benefit received by the union was
sufficiently substantial. In the present case, the problem is
22 Himmel v. Ford Motor Co. No. 01-4277
6Himmel’s complaints about the Kuykendall settlement were
concerned more with a dispute about whether the settlement was legal and
proper, and not with uncovering facts that the employer would necessarily
concede to be illegal. This also cuts against the conc lusion tha t Himmel’s
accusation was protected under the second prong of Greeley. See footno te
5, supra.
whether—for purposes of our inquiry into whether the
LMRA’s anti-corruption policy would be “seriously
jeopardized” by denying Himmel’s Greeley claim—the
alleged intangible benefit received by Mason constituted a
sufficiently substantial “thing of value” to make Himmel’s
belief that the Kuykendall settlement payment violated
“federal law” a reasonable belief.
In my view the benefit was not sufficiently substantial. In
DeBrouse the corruptness of the payments was evident
because it was a given that the third party who received the
payments was in no way entitled to them, and the substantial
nature of the “thing of value” was evident in part because the
payments were made systematically, week after week.
See 652 F.2d at 387. In the present case, on the other hand,
the third party—Kuykendall—received the money in a
settlement, so he had at least an ostensibly legitimate claim of
right to it; Mason as a union representative had a duty to do
his best to obtain a favorable remedy for a fellow union
member; and the payment was a one-time affair. We should
be reluctant to conclude that a union official’s success in
negotiating a settlement of a union member’s grievance is a
“thing of value,” even where the grievance may have been
unfounded. In sum, where there is serious doubt as to
whether Mason did anything improper, and where any benefit
Mason received was too insubstantial to constitute a violation
of Section 302, Himmel could not reasonably believe that the
settlement was obtained in violation of Section 302.6
An additional consideration weighs against finding that
Himmel has met the jeopardy requirement for a Greeley
claim. Namely, the federal statute upon which Himmel’s

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No. 01-4277 Himmel v. Ford Motor Co. 23
7The latter prohibition cannot serve as the basis for a Greeley claim
in this case, as there is no allegation that H immel complained to
regulatory or enforcement authorities. See Ohio Rev. Code
§ 41 13.5 2(A)(2); Kulch, 677 N.E.2d at 315–16.
Greeley claim is founded, LMRA Section 302, does not
contain an explicit ban on retaliation for reporting or
complaining about violations. This distinguishes this case
from Kulch, which found a Greeley cause of action based on
two statutes, each of which explicitly prohibited adverse
actions by employers against employees who report
violations. One was the Occupational Safety and Health Act,
which explicitly prohibits employer discrimination against
employees who report violations, see 29 U.S.C. § 660(c); the
other was Ohio’s Whistleblower Statute, which prohibits
discharge for reporting statutory violations to regulatory
authorities,7 see Ohio Rev. Code § 4113.52(A)(2); Kulch, 677
N.E.2d at 322–23.
Together, these considerations lead me to conclude that
Himmel has not established the jeopardy element of his
Greeley claim, and I would therefore affirm the judgment of
the district court.

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