WHISTLE BLOWER PROTECTION ACT: GUTTED BY THE MICHIGAN COURT OF APPEALS IN POPE V BRINKS, LC NO. 07-707289-CD

WHISTLE BLOWER PROTECTION ACT: GUTTED BY THE MICHIGAN COURT OF APPEALS IN POPE V BRINKS, LC NO. 07-707289-CD

 

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MCL 15.362 provides:

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body . . . .

To establish a prima facie case under the WPA, “a plaintiff must show that

  • the plaintiff was engaged in protected activity as defined by the act,
  • the plaintiff was discharged or discriminated against, and
  • a causal connection exists between the protected activity and the discharge or adverse employment action.” West v Gen Motors Corp, 469 Mich 177, 183-184; 665 NW2d 468 (2003).

Pursuant to MCL 15.363(4), a plaintiff is required to prove by clear and convincing evidence that she about to report the alleged violations. MCL 15.363(4) states as follows:

An employee shall show by clear and convincing evidence that he or she or a person acting on his or her behalf was about to report, verbally or in writing, a violation or a suspected violation of a law of this state, a political subdivision of this state, or the United States to a public body

However, according to Shallal v. Catholic Social Services of Wayne County, 455 Mich 604; 566 NW2d 571 (1997), while a plaintiff must establish by clear and convincing evidence that she was about to report a violation, “[a] plaintiff should not be required to say ‘magic words’ in order to reap the protections of the statute. It should be sufficient that plaintiff actually threatened to report her employer.” Id. at 616.

The Pope case falls on the fact that Plaintiff did not provide any corroborating evidence that she actually told her employer that she was going to report him to the EEOC or the attorney general. However, the statute does not require an individual to corroborate, in fact, as stated above in Shallal, the Court said that there should not be any “magic words” required to illustrate an intent to report. This presents an issue because all the Statute requires is for the plaintiff to show, by clear and convincing evidence that he or she was going to report, or did report. Clear and convincing evidence does not have to be corroborating evidence that the Plaintiff told one employer that she was going to report. Whether the Plaintiff actually did report was a question of fact that was decided by the jury. The court went beyond the statute in holding that because Plaintiff did not corroborate, that she failed to show that she intended to report.

Moreover, what is “Public Body” is has been defined by the Michigan legislature, and is a Michigan definition. Thus, a “Public Body” is (a) means any state or local legislative or governing body, including a board, commission, committee, subcommittee, authority, or council, that is empowered by state constitution, statute, charter, ordinance, resolution, or rule to exercise governmental or proprietary authority or perform a governmental or proprietary function; a lessee of such a body performing an essential public purpose and function pursuant to the lease agreement; or the board of a nonprofit corporation formed by a city under section 4o of the home rule city act, 1909 PA 279, MCL 117.4o.

Therefore, a Public Body in terms of WPA is a State or local entity. In this instance the EEOC is a federal entity, and falls outside of the definition of “public body” for the purposes of this statute. The attorney general, a State empowered entity, is a considered a “public body” for the reasons stated above so the Plaintiff’s complaint to the AG in this case would have been sufficient, but not the complaint to the EEOC. It is important to understand the entities that whistleblowers are required to report to.

 

 

 

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