Whistleblowers in Michigan: whistling in the wind?

The Whistleblowers' Protection Act ("WPA") was enacted in 1980 and requires an action to be filed within 90 days of the occurrence that is the basis of the claim.  The elements of a claim are not complicated; to recover, an employee must report or be about to report; verbally or in writing; a violation or a suspected violation; of a law, regulation, or rule of the state or a political subdivision; to a public body.

A recent unreported court of appeals decision upholding the trial court's dismissal of the claim by granting a motion for summary disposition is a result most often reached when whistleblower cases are appealed: an unreported decision upholding the trial court.  In Mortimer v. Alpena County Probate Court,  the probate register who had been employed for 30 years alleged that her termination was a violation of the WPA.  The basis of her claim was that a judge made appointments of standby guardians which she thought was not legal under the probate code.  The judge disagreed and continued the practice.  In addition to the dispute over the practice of appointing standby guardians, the two had other problems in their working relationship which culminated in the register's termination.


The trial court granted the motion because the register did not "report" the judge's behavior because she was only disagreeing about a legal issue.  The judge's behavior was in open court,  and the trial court stated that there would be a flood of lawsuits if the courts applied the WPA to apply when employers and employees disagreed about legal interpretation.

The court of appeals upheld the dismissal.  The panel stated that the plaintiff did not deny that the judge was interpreting the law differently.  Even if the judge were incorrect, an incorrect legal interpretation is not itself a violation of the law.  The register was not engaged in protected activity under the WPA.  The panel stated that the trial court's decision merely reflected the correct understanding that in order for the statute to apply, there must be a suspected violation of the law, not a mere disagreement about the application of the law.

The result in Mortimer is in line with other court of appeals decisions.  Since 2008, the court of appeals has decided 44 cases involving the WPA.  Of those decisions, 39 were unreported, and 5 were reported.  From 2011, there were 22 cases affirmed and 1 reversed by the court of appeals. The affirmances were generally upholding summary disposition motions granted for the defendants.  Issues involved in the cases included whether conduct was protected activity; whether there was a causal connection between the protected conduct and the adverse employment action; and temporal proximity as the only evidence of causation.

Two of the cases are being reviewed by the Michigan Supreme Court. In DeBano-Griffin v. Lake County, the court is going to examine the issue of whether the plaintiff established a causal connection between protected activity and the adverse employment action as well as whether a whistleblower may challenge a decision claimed to be a matter of business judgment based on fiscal reason as a mere pretext where a defendant asserts that the separation of powers principle prevents the judiciary from examining budgetary decisions of a legislative body.  In  Whitman v. City of Burton, the court will review the issue of whether the primary motivation of an employee pursuing a claim must be a desire to inform the public on matters of public concern as opposed to personal vindictiveness.

While whistleblower cases receive a great deal of publicity, they are seldom successful under the Michigan act.  The two cases pending before the Michigan Supreme Court should determine whether that trend will continue or whether there will a shift in favor of the whistleblowers.   For now, employers sued under the Act can take comfort from the court of appeals record.

For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.

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