One for the Whistleblower

One for the Whistleblower

 The Michigan Court of Appeals historically has not been a good place for plaintiffs who sue under Michigan's Whistleblowers' Protection Act. When a decision goes in favor of a plaintiff, it is worth noting, even if the decision is per curiam and unreported. In Williamson v. G & K Management [an enhanced version of this opinion is available to lexis.com subscribers], a panel upheld the lower court's denial of summary disposition and upheld a jury verdict in favor of the plaintiff.

The focus in the case was on whether the plaintiff had established that her discharge was causally connected to her protected activity. The defendants did not contest that the plaintiff had engaged in protected activity and that her discharge would qualify as an adverse employment decision.

The defendants operated a nursing home which was investigated by the state because of two incidents. While a number of employees participated in the investigation, plaintiff was one of two employees readily identifiable in the state report because they had no peers in the positions referenced by the investigators. The plaintiff was terminated less than ten days after the report was issued by the state for allegedly failing to make sure that the proper size tracheotomy tube was in a resident's room.

The plaintiff's supervisor interrogated her during the investigation as to what she was telling the state investigators, and on one occasion, asked the plaintiff to lie about the existence of a written policy. In a staff meeting, the supervisor stated that someone was leaking information to the state and looked directly at the plaintiff. Plaintiff's department was the only one audited by the employer after the report was issued even though other departments were identified as having violations. The state investigation had revealed no problems with the existence of back up ventilators which was the basis of her termination.

Plaintiff sought copies of daily audit checklists which she maintained would show there was no problem. The checklists were not produced in discovery because they had been destroyed. The defendants admitted that they did not review the checklists prior to making the decision to terminate the plaintiff. The destruction of the checklists to a jury instruction dealing with the adverse inference that could be drawn from the destruction.

The panel stated that the trial court had correctly discerned the existence of several factual questions for the jury. The evidence amassed in discovery supported the denial of summary disposition. The panel found that the timing also supported an inference that the termination was causally related to the protected conduct which was coupled with the fact the employee handbook provided for the immediate suspension of employees who commit offenses for which termination upon the first offense is appropriate. There was no suspension of the plaintiff.

Many of the cases which have come before the court only had temporal proximity of the protected conduct to the timing of the discharge to support the claim. Here, as reviewed by the court, the facts supported an argument that plaintiff was singled out for scrutiny and ultimately discharged and that the information she  provided was adverse to the defendants' position. The failure to treat the offense as one for which immediate termination was appropriate under the handbook undercut the defendants' position as to the severity of the offense. The destruction of the checklists may well have been the final piece the jury needed. The court's recitation of the facts provides a guide of how not to treat a whistleblower. If the evidence supports the argument you singled out an employee who is a whistleblower, you are likely to be going to the jury.

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

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