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By:  Rob Dare – 2/11/16

          Plaintiff, sued her former employer, a women’s shelter, its executive director and operations manager, claiming wrongful termination in violation of Michigan’s Whistleblower Protection Act (“WPA”). Plaintiff claimed that the Executive Director told her that she intended to use grant money to purchase a stove for her daughter. Further, according to plaintiff, the Executive Director implied that plaintiff should document the transaction in the name of a specific client to hide the unauthorized purchase. The Executive Director denied using the grant funds for such a purpose, or ever discussing such a purchase with plaintiff.

          Plaintiff testified that she contacted two supervisors about Long’s alleged plan, and after no action was taken, Plaintiff reported the same information to the operations manager. In her deposition, plaintiff stated that at the time of her conversation with the operations manager, she believed the Executive Director had already purchased the stove with the funds, but she did not convey that belief to the operations manager. The operations manager contended that she had no recollection of this discussion with plaintiff.

          A few weeks later, plaintiff was terminated. The stated reason was detailed in a termination letter: plaintiff’s allegedly harassing and intimidating behavior toward a fellow employee in violation of defendants’ employment policies in a January 2012 incident. Plaintiff alleged that she was terminated for reporting her conversation.

          After conflicting conclusions from the trial court and Michigan Court of Appeals, a unanimous Michigan Supreme reversed the Court of Appeals and held that plaintiff’s actions did not constitute protected activity. The pertinent provision of the WPA provides that “an employer shall not discharge, threaten, or otherwise discriminate against an employee . . . because the employee . . . reports or is about to report . . . a violation or a suspected violation of a law.” The Court explained that the reference to “a violation or a suspected violation of law” plainly “envisions an act or conduct that has actually occurred or is ongoing.” Further, the Court noted, the provision “contains no language indicating that future, planned, or anticipated acts amounting to a violation or a suspected violation of a law are included in the scope of the WPA.” Therefore, the court concluded, an employee’s stated intention to commit an act amounting to a violation of a law in the future does not constitute “a violation or a suspected violation of the law” under the WPA.

          However, since the WPA did not apply, it did not pre-empt other possible claims and the Supreme Court remanded the case to the Court of Appeals to consider plaintiff’s claim that the discharge violated public policy. We will of course update this blog when the Court of Appeals decides that issue.