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Jun 2013
June 14, 2013

Key to Whistleblower Claims is What Employees Do, Not Why They Do It

Michigan’s Whistleblower Protection Act (WPA) says an employee cannot  be fired or disciplined because he or she has engaged in an activity protected by the statute. That protection extends to an employee who reports a violation or suspected violation of federal, state or local law to a public body. The protection also applies if the employee can prove by clear and convincing evidence that he was “about to report” such a violation.

In Whitman v. City of Burton, a decision issued in May, the Michigan Supreme Court clarified that in determining whether an employee has engaged in conduct protected by the WPA, the proper focus is on what the employee did, not why the employee did it.

Prior decisions had suggested that a plaintiff had to demonstrate that his or her conduct was primarily motivated by “a desire to inform the public on matters of public concern.” That language was read by lower courts to mean that if an employee’s primary motivation in making a report was personal in nature – such as financial gain or vindictiveness – then he or she could not succeed on a WPA claim.

In Whitman, the plaintiff was a municipal police chief who had a dispute with the mayor over his pay. The dispute was the subject of repeated complaints by the chief to the mayor and other city officials. There was testimony at trial indicating that the mayor told others that he was considering removing the chief because of the pay dispute. After the mayor was re-elected, he ultimately did refuse to reappoint the chief. Testimony at trial indicated that immediately after informing the chief of this decision, the mayor told others that “it all goes back to” the pay complaints.

A jury found that the defendant had violated the WPA, and awarded the chief $232,500.  The Michigan Court of Appeals, however, reversed that verdict, holding that the claim failed because the chief was motivated by his personal financial interest (as opposed to any public interest) when he complained.

The case then went  to the Michigan Supreme Court, which rejected the prior rulings that focused on motive. The Supreme Court held that nothing in the language of the statute addresses the employee’s motivation for engaging in protected conduct.

Accordingly, the Court held, a plaintiff’s motivation is not relevant to the question of whether or not he engaged in protected conduct under the WPA. Rather, a plaintiff must prove only that:
  1. He engaged in conduct protected by   the WPA, such as reporting a violation   of law to a public body.
  2. He suffered an adverse employment   action, and;
  3. There was a causal connection between   the protected conduct and the adverse   employment action.

This decision highlights and reinforces the more typical defenses to WPA claims. First, a WPA plaintiff must have actually engaged in the specific conduct protected by the statute. By no means is every employee complaint or other expression of displeasure considered protected conduct under the WPA. In addition, the plaintiff in a WPA case still bears the burden of proving that the discipline was specifically a result of the protected activity. That means a WPA claim is likely to fail if decision makers had no knowledge of the allegedly protected conduct or if performance or behavior issues actually led to the employer’s decisions.

The lesson for employers from the Whitman decision is that in evaluating whether the WPA applies to a particular employee, the focus must be on the employee’s conduct and not his or her  motivation.

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