Can a plaintiff survive summary disposition in a case under the Michigan Whistleblowers' Protection Act where the only evidence to support his claim is his deposition testimony that the company told him in a meeting his protected activity was the reason for his termination? The Michigan Supreme Court recently answered "no" when, in lieu of granting appeal, it reversed the court of appeals' 2-1 decision [an enhanced version of this opinion is available to lexis.com subscribers] and reversed the judgment for the reasons stated in the dissent. It did not discuss the case in its summary order (Fuhr v. Trinity Health Corp.) [enhanced version]. The plaintiff alleged in his complaint that he had been terminated for reporting an over-billing issue to the U.S. Attorney's office. In his deposition, he testified that he was told he was being terminated for his call. The trial court noted that this testimony conflicted with other evidence during discovery, including an email he sent to the company saying he was never given a reason for his termination. The majority of the court of appeals found that his testimony was direct evidence of impermissible discrimination under the Act because if it were believed by a jury, it would require the conclusion that the protected activity was at least a motivating factor. By producing direct evidence of discrimination based on his whistleblowing, he was not required to make a prima facie case, and the case should proceed as an ordinary civil matter. The dissent stated that the self-serving testimony was contradicted by the record which established that the decision was made before the date of the alleged call. Significantly, after his termination meeting , the plaintiff sent an email stating that he was not given a reason for his termination. In addition, the plaintiff did not allege her was fired for contacting the U.S. Attorney until his deposition. The dissent found the U. S. Supreme Court's decision in Scott v. Harris, 550 U.S. 372, 378 (2007) [enhanced version], where the Court held that when the opposing parties tell two different stories, one of which is blatantly contradicted by the record so no reasonable jury could believe it, the court should not adopt that version for the purposes on ruling on a motion for summary judgment, to be persuasive. The dissent concluded that no reasonable jury could believe plaintiff's testimony. The significance of the Michigan Supreme Court's action is that it establishes a base line for the lower courts to consider where evidence supporting a violation consists of similar claims anchored by only by deposition testimony. Hopefully, the lower courts will understand that summary disposition is not defeated simply by the testimony of the plaintiff when that testimony lacks supporting evidence. The case will provide attorneys with the citation they have longed for when dealing with cases of questionable merit and little factual support.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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