Whistleblowing in Michigan: the Michigan Supreme Court Goes on the Record

Whistleblowing in Michigan: the Michigan Supreme Court Goes on the Record

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  I did an article on the court of appeals' decisions, the vast majority of which are unpublished, and found that from 2011 to present, the court had affirmed 22 cases and reversed 1.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 employer.

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.