To say that employees have had a difficult time in
pursuing claims under the Michigan Whistleblowers' Protection Act would be an
understatement. I did an article on the
court of appeals' decisions, the vast majority of which are unpublished, and
found that from 2011 to present, the court had affirmed 22 cases and reversed
1. Most of the decisions were affirming summary disposition for the
The Michigan Supreme Court has had two cases pending before it dealing with the
statute and has recently decided one case, Debano-Griffin
v. Lake County. The plaintiff was the director of the county's 911
department. She had complained to the board
of commissioners that their plan to transfer money
from the ambulance account to another account violated a millage proposal and
was in breach of contract. The board subsequently returned to the money
to the proper account and then merged two positions, resulting in the
elimination of the plaintiff's position. The explanation given to her was
that the move was the result of budget problems and that the county was forced
to take costing measures to balance the budget. The proposed budget
prepared two months before the elimination of the positon showed, however, that
the director position was fully funded.
The plaintiff prevailed at trial, and the trial court entered judgment on
jury verdict. After a protracted appeals process which included the Michigan
Supreme Court which reversed and remanded the case to the court of appeals, the
court of appeals ruled that there was insufficient evidence of a causal
connection and that while the temporal relation between the complaint and
position elimination existed, the case did not have "something
more" to establish a connection.
The Michigan Supreme Court reversed. The Court held that the plaintiff's
evidence established more than a mere coincidence in time. The Court
noted that in the 12 day period when plaintiff raised her complaints regarding
the transfer of the funds, her position went from fully funded to nonexistent.
A juror could reasonably conclude that the board decided to fund the
position until the complaints because the county's financial situation could
not have deteriorated to the point in 12 days that it had to consider an
extreme cost cutting issue. The Court stated that the more an employer is
affected by the whistleblowing activity, the stronger the causal link becomes
between the activity and the adverse employment action. Here, the board
returned the funds which lends support to the plaintiff's argument that she had
forced the board to do something it did not want to do, thereby motivating it
to eliminate her position.
With respect to the county's defense that the business judgment rule prevented
scrutiny of its financial decision, the Court stated that a plaintiff cannot
simply show a decision is wrong or mistaken but must show it was
discriminatory. The Court noted that the plaintiff questioned whether the
basis was false. The plaintiff identified figures in an audit report that
suggested the county was not facing a budgetary crisis. In addition, the
employee who gave an affidavit supporting the argument was found to have asked
for a pay raise during the relevant time frame. The Court said that this
put the employee's credibility at issue and presented the trier of fact with a
question of whether the proffered justification was legitimate. The Court
discounted the county's separation of powers defense as unpersuasive and noted
that the statute specifically waived legislative immunity.
In its conclusion, the Court stated that the court of appeals erred in
concluding that plaintiff failed to show more than a temporal relationship.
Additional evidence was presented, especially the fact that the position
became unfunded in 12 days which overlapped with the protected activity.
The plaintiff had presented sufficient evidence to conclude that
reasonable minds could differ over the board's true motivation, raising a
genuine issue of material fact regarding causation. The Court directed
that the order entering judgment be reinstated.
The focus of the lower courts going forward will be on the timing and
"something more." The lower courts will be applying the Court's
factual template to see if the "something more" raises disputed
issues of material fact which are for the jury. Employer may no longer
see the early end to whistleblower litigation.
The full impact of the Court's decision may not be known until the Court issues
its decision in Whitman
v. City of Burton. In that case, the Court directed the parties to
address the issue of whether its earlier decision correctly held that the
primary motivation of an employee must be to inform the public of matters of
public concern rather than for a desire of personnel vindictiveness. Depending
upon the Court's decision, an employer may still have the defense of the
employee's improper motivation.
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
For more information about LexisNexis
products and solutions connect with us through our corporate site.