TOV.WrongfulTermination&Discrimination

Court affirms summary disposition of race discrimination and whistleblower claims

In Wiltse v. Delta Community College, the plaintiff Director of Public Safety argued that he was a victim of race discrimination and fired in retaliation for blowing the whistle on a professor-student sexual relationship.  The Court held that since he discussed the incident with employer representatives after he concluded that "no criminal wrong-doing had occurred," his actions were not protected under the WPA.   Wiltse also alleged that the college president fired him because she stereotyped him as a "white skin-head, probably KKK, macho white male who shoots to kill."  The Court pointed out that there was no direct evidence of any such racial stereotyping and that Wiltse had not documented either disparate treatment or membership in a protected class that was discriminated against.  Summary disposition was upheld.

Court overturns jury verdict for fired employee; limits compensation to past economic damages despite apparent jury confusion

In Larry v. Hurley Medical Center, the plaintiff sued the employer hospital arguing that it violated the Whistleblower Protection Act when it fired her in violation of the Civil Rights Act.  She had also alleged that her firing was inappropriate because the hospital lacked "just cause" under their contract. 

The jury agreed and executed a verdict form that awarded her $56,000.00 in past economic damages. It also awarded her non-economic damages, which were not collectible if the firing was a contract violation but not a WPA or CRA violation.  The jury did not initially award any future economic damages.  The Court expressed concern that the jurors misunderstood the verdict form and caused them to return to deliberations, after which the jury awarded $83,577 in future economic damages and eliminated the non-economic damage award. 

The defendant appealed and the Court of Appeals struck down the judgment, holding that since the questions on the verdict form were "clear and unambiguous" the judge abused his discretion in asking the jurors to clarify their original award.  The past economic award was enforced but no other damages were awarded, either for non-economic loss or for future economic loss.

Court holds that prior ruling applicable to the fired employee's contract claims is binding on current lawsuit; upholds summary disposition of case

In Jackson-Phelps v. Dipiero, a terminated employee who had previously lost a wrongful discharge case attempted to bring a second action.  Her first case was based on breach of contract for termination without just cause, and illegal retaliation under the Whistleblower Protection Act.  The employer sought summary disposition of the second case, based on the argument that she had "a full and fair opportunity" to dispute the legality of her termination in the original suit, thus barring a second action.  The plaintiff argued that the findings necessary to uphold the termination in the first action were not sufficient to defend her current legal claim. 

The Court of Appeals agreed that the WPA findings would not bar the second action, but disagreed with respect to the earlier contract action.  Since the fact-finder in the original case had inherently accepted that the plaintiff was discharged because of the content of an auditor's report, "good cause" for terminating her employment existed and would also constitute binding factual determinations sufficient to defend the instant, second lawsuit.  Summary disposition of the second case was upheld on appeal.

Supreme Court of Michigan holds that complaint about employer's planned future illegal conduct is not protected by Whistleblower Protection Act

The conservative majority of the Michigan Supreme Court summarily reversed the Court of Appeals and threw out the Plaintiff's Whistleblower Protection Act retaliatory firing claim.  In Pace v. Edel-Harrelson, the plaintiff argued that she was wrongfully terminated in retaliation for reporting that a co-worker--the Executive Director of the Agency--was planning to buy a stove for her daughter with grant funds that were not authorized for that purpose. 

The Supreme Court held that since the Director had only announced an intent to act illegally, and had not yet done so, the plaintiff's report did not relate to "a violation or a suspected violation of law..." and therefore her report wasn't protected activity under the WPA.  Since the plaintiff didn't wait until after the illegal act had occurred, the Director could fire her for reporting the plan, and the retaliatory firing wasn't illegal under the WPA.

Court upholds summary disposition against woman alleging Whistleblower Protection Act violation, refusing to apply WPA to contract renewal

The Plaintiff was improperly suspended in October of 2013 by the MGH Family Health Center, after engaging in protected activity.  She was notified two weeks later that her annual contract would not be renewed on January 1 of 2014.  She filed a lawsuit on February 19 of that year, arguing that she was wrongfully terminated for engaging in protected activity.  The trial judge summarily dismissed her claim, holding that while the Whistleblower Protection Act applies to preclude termination of employment, it does not protect an employee's right to contract renewal.  The judge also held that her 90 day limit on filing suit commenced when she was notified of the suspension--and that no new violation or time limit resulted from the notice of non-renewal.  With that interpretation, her February lawsuit was not filed within the 90-day limit.

The Court of Appeals affirmed the lower court's holding and its analysis.  It held that Plaintiff Bradford's rights under the WPA were limited to acting within 90 days of her wrongful suspension, and that she had no WPA rights arising out of the non-renewal.

Police officer/union president cannot sue under Whistleblower Protection Act after suffering retaliatory re-assignment

In Smith v. City of Flint, the plaintiff was the president of the police officer's union, and had recently been assigned full-time to administering officers' grievances with the City. That arrangement was due to expire at the year-end.  In the meantime, after the City passed a millage, he publicly complained that the new money intended for use in hiring additional officers was being spent improperly.  He was immediately re-assigned to road patrol duties "in the most dangerous part of the City."  He sued the City arguing that the administration was retaliating against him for his public criticism in violation of the Whistleblower Protection Act [WPA].

Unfortunately for Smith, he drew an unfavorable panel at the Court of Appeals level, including Judge Henry Saad--who authors opinions that suggest that he doesn't believe that consumers, employees, injury victims or anyone else--no matter how abused--has a right to file a lawsuit.  Saad and one other judge formed the majority who ruled that Smith could not dispute his re-assignment.  They ruled that his re-assignment was a "mere inconvenience" and that he hadn't documented an "adverse employment action under the WPA."  They also ruled that he failed to establish that his public criticism was "protected activity."

 

Employee discharged after "protected activity" still cannot sue for retaliation

In Wiechmann v. Home Care Alternatives, LLC, the Court of Appeals affirmed the dismissal of the plaintiff's Whistleblower Protection Act retaliation claim.  The Court acknowledged that the plaintiff was discharged (the employer claimed she resigned) and agreed that she was engaged in protected [Whistleblowing] activity in ordering the report of suspected abuse.  Nevertheless, it affirmed the summary disposition of her wrongful discharge case because she "only" proved that the discharge happened near in time to the protected activity. 

The Court accepted the defendant's "non-retaliatory" excuse for discharge (that "the plaintiff had threatened to resign multiple times in one week") as "truth" and rejected her constitutional right to have the evidence weighed by a jury of her peers.  According to the employer- and insurer-friendly judges, she needed a "smoking gun"--and the defendants weren't stupid enough to hand her one.

Whistleblower verdict overturned

Beverly Know-Pipes sued the Genessee Intermediate School District under the Whistleblower Protection Act.  She was awarded a verdict in the amount of $760,000.00.  The school district appealed and last month the Court of Appeals overturned the verdict.  The appellate judges ruled that her participation as a witness in a lawsuit involving the school district did not constitute protected activity because she was not "required to give testimony."  The judges also disputed the jury's analysis of the defendant's employees' testimony and held that she presented inadequate "direct" evidence of retaliation. 

Before the Michigan Courts became so political, judges did not engage in this kind of parsing of the weight given to admissible testimony by jurors.  With a highly political Supreme Court, however, it is pretty clear that the Court will sustain and approve of any holding that will deny court access to an injury or employment claimant.

Court upholds Whistleblower Protection Act verdict but requires reduction in verdict

The Police Chief and deputy chief sued the City of Highland Park, arguing that they suffered adverse employment consequences after reporting a violation of the law by the mayor's son.  They achieved a verdict which included emotional distress damages.

The Court of Appeals allowed the verdict to stand, finding adequate evidence of a breach of the Whistleblower Protection Act, but sent the case back to the trial judge to reduce the amount of the verdict.  The high court held that the two police officers had not presented adequate evidence to support the award of emotional distress damages.  Probably they didn't cry on the stand.

Divided court reverses trial judge and dismisses police officer's Whistleblower Protection Act claim

Judges Saad and Murray, two of the most insurance-friendly judges on Michigan's Court of Appeals, overturned the trial judge's ruling and granted the City of Dearborn summary disposition in a police officer's Whistleblower Protection Act case.  The case, Krawczyk v. City of Dearborn,  involved a police sergeant who allegedly threatened to report to his sister his brother-in-law's infidelity.  The claims of the brother-in-law, a Lieutenant in the Department, ultimately resulted in a State Police investigation and eventually, interference with the Sergeant's employment.  The sergeant also argued that he was retaliated against, in violation of the Whistleblower Protection Act, for reporting allegedly wrongful acts by the Lieutenant.  Judges Saad and Murray rejected the trial judge's analysis and granted the City summary disposition.  Judge Hoekstra, another Republican on the bench, disagreed with the majority opinion.