Whitman v. City of Burton
Whitman v. City of Burton
Concurring Opinion
(concurring). I concur fully with Judge SAAD’s majority opinion. I write separately to urge our Supreme Court to grant leave to appeal in the event of an application for leave to appeal and to consider the whistleblower claim in the context of plaintiffs breach of the agreement to forgo wage benefits. The record establishes that plaintiff attended the meeting at which city administrators agreed to forgo wage benefits. By doing so, plaintiff bound himself to a contractual agreement, which he later breached by
In contract law, “[o]ne who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for failure to perform.” Sentry Ins v Lardner Elevator Co, 153 Mich App 317, 323; 395 NW2d 31 (1986). In this case, plaintiff and his similarly situated colleagues reached an agreement with defendants to forgo certain benefits. This agreement clearly benefitted the city and all of its residents, including plaintiff in his capacity as a resident of the city of Burton. Plaintiff then breached the agreement by demanding the forgone benefits. Plaintiff now attempts to benefit from his breach by conjuring an action under the WPA.
In my opinion, plaintiffs breach of contract precludes him from maintaining this specious action under the WPA.
Dissenting Opinion
(dissenting). I respectfully dissent. The appeal of defendants, the city of Burton and former mayor Charles Smiley, returns to this Court from the Michigan Supreme Court after the Supreme Court held that plaintiff, Bruce Whitman, engaged in conduct protected under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and remanded to this Court to consider all remaining issues on which this Court did not formally rule, including the issue of causation. Whitman v City of Burton, 493 Mich 303, 319-321; 831
I. PROTECTED ACTIVITY
When this case was appealed to the Michigan Supreme Court, the Court held that plaintiff engaged in protected activity under the WPA:
[I]t is undisputed that the Mayor decided to withhold payment of unused sick, personal, and vacation time in violation of Ordinance 68C, a decision to which Whitman objected. It is also undisputed that Whitman reported the Mayor’s violation of Ordinance 68C to the Mayor himself, city administrator [Dennis] Lowthian, and the city attorney, and that following Whitman’s reporting of this violation, he was discharged. Finally, Whitman did not knowingly make a false report given that the evidence reveals that the Mayor did in fact violate Ordinance 68C, nor is there any indication that a public body requested that Whitman participate in an investigation. Accordingly, Whitman engaged in conduct protected under the WPA. [Whitman, 493 Mich at 319-320 (emphasis added).]
Despite our Supreme Court’s conclusion, the majority holds that plaintiff “is not a ‘whistleblower’ under the WPA . . . .” The majority reaches this conclusion by finding that “plaintiff’s actions — as an objective matter — were undoubtedly against the public interest” because Ordinance 68C “harmed, not advanced, the public interest.”
First, our Supreme Court’s express conclusion that plaintiff engaged in protected activity under the WPA is the law of the case; this Court is bound by this conclusion. See Lenawee Co v Wagley, 301 Mich App 134, 149; 836 NW2d 193 (2013) (“The law of the case doctrine holds that a ruling by an appellate court on a particular issue binds the appellate court and all lower tribunals with respect to that issue.”) (quotation marks and citations omitted). The majority’s holding that plaintiff is not a whistleblower under the WPA directly conflicts with the Supreme Court’s conclusion that plaintiff engaged in protected activity under the WPA. See, generally, Henry v Detroit, 234 Mich App 405, 409-410;
The majority attempts to sidestep the law of the case doctrine, opining that the Supreme Court remanded for consideration of “ ‘all remaining issues on which [the Court of Appeals] did not formally rule’ ” and that this Court did not previously consider whether plaintiffs actions must have objectively advanced the public interest to be protected under the WPA. However, “[t]he law of the case doctrine applies ... to questions actually decided in the prior decision and to those questions necessary to the court’s prior determination.” City of Kalamazoo v Dep’t of Corrections (After Remand), 229 Mich App 132, 135; 580 NW2d 475 (1998) (emphasis added). Although neither this Court in its prior opinion nor our Supreme Court addressed whether plaintiffs actions must have objectively advanced the public interest to be protected under the WPA, the Supreme Court’s conclusion that plaintiff engaged in protected activity under the WPA necessarily encompasses consideration of any issue that would be dispositive of whether plaintiff engaged in protected activity under the WPA. Assuming that plaintiffs actions must have objectively advanced the public interest to be protected under the WPA, this issue was necessary to the Supreme Court’s determination that plaintiff engaged in protected activity under the WPA.
Second, the majority’s conclusion is contrary to the plain language of the WPA. As our Supreme Court emphasized, “the plain language of MCL 15.362 controls” in this case. Whitman, 493 Mich at 321. Nothing
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, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
Neither the terms “public interest” nor any like terms are found in the statute. “It is a well-established rule of statutory construction that this Court will not read words into a statute.” Byker v Mannes, 465 Mich 637, 646-647; 641 NW2d 210 (2002). “If the statutory language is clear and unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed, and further judicial construction is not permitted.” McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 493; 711 NW2d 795 (2006)(emphasis added).
As the basis for its holding that plaintiffs actions must have objectively furthered the public interest for plaintiff to be a whistleblower, the majority explains that the purpose of the WPA is the protection of the public. Although the majority correctly identifies the underlying purpose of the WPA, see Dolan, 454 Mich at 378-379, “ ‘the proper role of a court is simply to apply the terms of the statute to the circumstances in a
Third, the majority’s conclusion is contrary to binding precedent. This Court has explained that “[t]he plain language of the [WPA] provides protection for two types of ‘whistleblowers’: (1) those who report, or are about to report, violations of law, regulation, or rule to a public body, and (2) those who are requested by a public body to participate in an investigation held by that public body or in a court action.”
Finally, even if plaintiffs actions must have objectively furthered the public interest for him to be a whistleblower under the WPA, I would conclude that this requirement is satisfied. The public interest is served when a violation of the law by a public official is reported. See Dolan, 454 Mich at 378 n 9 (“Violations of the law ... by governments and by the men and women who have the power to manage them are among the greatest threats to the public welfare”) (quotation marks and citation omitted); see also Gray v Galesburg, 71 Mich App 161, 163; 247 NW2d 338 (1976) (“On the part of the city there has been conceded the right to prosecute the Grays for an alleged violation of a city ordinance, clearly a public interest.”). In this case, it is undisputed that plaintiff reported Smiley’s violation of Ordinance 68C to a public body. Although it may have been necessary for the city to adjust its budget to preserve essential public services and avoid terminating the employment of its employees, balancing the budget through a “gentlemen’s agreement”
Accordingly, I would conclude — as our Supreme Court did — that plaintiff engaged in protected activity under the WPA. In other words, plaintiff is a whistle-blower.
II. CAUSAL connection
The majority also holds that “the evidence is overwhelming that plaintiffs so-called ‘whistleblowing’ had
With its repeated references to plaintiffs other alleged misdeeds, as “weighed against” his retaliation evidence, the majority opinion reads much like a fact-finder’s conclusions. But the task before us is not to weigh the evidence and decide who we believe after reviewing a cold transcript. We are not jurors, and we were not at the trial. When determining whether the trial court should have granted a directed verdict or a motion for JNQV[ our task is to “review the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only if the evidence so viewed fails to establish a claim as a matter of law, should the motion be granted.”
In its opinion, the Supreme Court appears to suggest, without deciding, that a question of fact exists concerning causation:
To recover under the WPA, Whitman must therefore establish a causal connection between this protected conduct and the adverse employment decision by demonstrating that his employer took adverse employment action because of his protected activity. At trial, Whitman presented evidence that his reporting of the Ordinance 68C*49 violation made a difference in the Mayor’s decision not to reappoint him and the Mayor, in turn, presented evidence to the contrary. However, because the Court of Appeals did not address the issue of causation when it held that Whitman’s WPA claim failed as a matter of law, this question must be resolved on remand for the purpose of determining whether the circuit court’s denial of defendants’ motion for JNOV was proper. Whitman, 493 Mich at 320 (second emphasis added).]
Under the WPA, a plaintiff must establish that “a causal connection exists between the protected activity and the adverse employment action.” Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013) (quotation marks and citation omitted). “A plaintiff may establish a causal connection through either direct evidence or indirect and circumstantial evidence. Direct evidence is that which, if believed, requires the conclusion that the plaintiffs protected activity was at least a motivating factor in the employer’s actions.” Shaw v Ecorse, 283 Mich App 1, 14; 770 NW2d 31 (2009).
Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link exists between the whistleblowing act and the employer’s adverse employment action. A plaintiff may “ ‘present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful [retaliation].’ ” Once a plaintiff establishes a prima facie case, “a presumption of [retaliation] arises” because an employer’s adverse action is “more likely than not based on the consideration of impermissible factors” ....
The employer, however, may be entitled to summary disposition if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-finder could still conclude that the plaintiffs protected activity was a “motivating factor” for the employer’s adverse action. “[A] plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but*50 that it was a pretext for [unlawful retaliation].” [DebanoGriffin, 493 Mich at 176 (citations and quotation marks omitted).]
Viewing the evidence presented at trial in the light most favorable to plaintiff, there was sufficient evidence for a reasonable juror to conclude that plaintiffs reporting of Smiley’s violation of Ordinance 68C was a motivating factor in Smiley’s decision not to reappoint plaintiff. See id.; see also Shaw, 283 Mich App at 14. As discussed in my previous dissenting opinion in this case, the following evidence of causation was presented at trial:
First, there was evidence that Smiley was aware that plaintiff reported the ordinance violation. In his January 9, 2004, letter to Smiley, plaintiff stated: “I do not feel that issuing a confidential memo that affects ones [sic] wages and benefits that are set by ordinance can supersede that very ordinance. To ignore issues specified in that ordinance would be a direct overt violation of that ordinance and I fully intend to address the violation should it occur.” At the January 12, 2004, staff meeting, plaintiff told Smiley that he had talked to the city attorney about the payout issue, that refusing to pay employees for unused days was an ordinance violation, and that he expected the violation to be addressed. There was also testimony that Smiley was aware of plaintiffs January 23, 2004, letter to Hamilton, wherein plaintiff reported the violation. Although Smiley testified that he did not discuss the letter with Hamilton, Hamilton testified that he did, in fact, tell Smiley about the letter. It is the fact-finder’s responsibility to determine the credibility and weight of the testimony. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 491; 668 NW2d 402 (2003).
Further, although there was evidence that there may have been a variety of reasons for Smiley’s decision not to reappoint plaintiff, such as plaintiffs allegedly inadequate discipline of the officers who stopped Smiley after his visit to the local bar, sexually explicit e-mails sent by plaintiff,*51 and other reasons described by the majority, there was also evidence that plaintiffs reporting of the ordinance violation was another reason that made a difference in Smiley’s decision. On June 7, 2004, Smiley sent plaintiff a letter stating that he was considering removing plaintiff as police chief. Plaintiff testified that at their meeting later that day, Smiley angrily pointed at his face and yelled, “You threatened to have me prosecuted over the 68C vacation pay issue.” [Mark] Udell’s meeting notes stated: “Mayor — no trust — 68-C (vacation) — lack of communication . ...” While Smiley did not immediately fire plaintiff as threatened, and plaintiff remained police chief through November 2007, a reasonable juror could have concluded that the Ordinance 68C issue was still on Smiley’s mind when he decided not to reappoint plaintiff. The incident when plaintiff allegedly failed to adequately discipline the police officers who had stopped Smiley’s vehicle after he left the bar, which was one of Smiley’s purported reasons for not reappointing plaintiff, occurred in March 2004. Thus, by Smiley’s own admission, there were incidents going back as far as 2004 that made a difference in his decision-making in 2007.[7 ] Moreover, at the December 2007 meeting of city police lieutenants and sergeants, just after plaintiffs discharge, Smiley mentioned that he and plaintiff “got off on the wrong foot” because of the Ordinance 68C issue. Plaintiff testified that after the meeting, which he had not attended, he asked two sergeants and a lieutenant whether the reason for his discharge had been discussed. They all said that the reason had been discussed and that “it all goes back to” the Ordinance 68C issue. Sergeant Odette testified that Smiley said that he had not been happy with plaintiff since early after his appointment, citing the pay*52 out issue. Whitman v City of Burton, 293 Mich App 220, 240-242; 810 NW2d 71 (2011) (BECKERING, J., dissenting).]
The majority lists a variety of reasons why there is no causal connection between plaintiffs reporting of the ordinance violation and Smiley’s decision not to reappoint him. However, none of the reasons offered by the majority justifies the conclusion that there is no causal connection as a matter of law.
First, the majority opines that there is no causal connection because Smiley “viewed the 68-C issue . . . as presenting an example of how plaintiff was untrustworthy.” The majority references the notes that Udell took at the June 2004 meeting, which state, “Mayor — no trust — 68-C (vacation) — lack of communication . . . .” According to the majority, this evidence establishes that Smiley decided not to reappoint plaintiff because he did not trust plaintiff, not because plaintiff was a whistleblower. The majority views the evidence of the June 2004 meeting in a light most favorable to defendants, the moving parties, which is improper when reviewing a motion for JNOV See Genna v Jackson, 286 Mich App 413, 417; 781 NW2d 124 (2009). There was evidence presented that at the June 2004 meeting, Smiley yelled at plaintiff, “You threatened to have me prosecuted over the 68C vacation pay issue.” Even assuming on the basis of this evidence that Smiley decided not to reappoint plaintiff because he did not trust plaintiff, it can be reasonably inferred that Smiley’s distrust of plaintiff was predicated on plaintiffs reporting of Smiley’s violation of Ordinance 68C. Thus, even when the matter is framed in terms of trust as opposed to whistleblowing, it remains that Smiley decided not to reappoint plaintiff “because of his protected activity.” Whitman, 493 Mich at 320 (emphasis omitted).
In this case, the lack of temporal proximity between plaintiffs reporting of the ordinance violation and Smiley’s decision not to reappoint him is but one factor to consider when determining whether a causal connection exists. It is not conclusive. As previously discussed, although Smiley did not immediately fire plaintiff as threatened and plaintiff remained the police chief through November 2007, a reasonable juror could conclude that the Ordinance 68C issue was still on Smiley’s mind when he decided not to reappoint plaintiff. By Smiley’s own admission, there were incidents going back as far as 2004 that made a difference in his decision-making in 2007. And there was evidence in this case illustrating that Smiley’s antagonism toward plaintiff arising from the ordinance issue continued through the date when Smiley declined to reappoint plaintiff and was a motivating factor in Smiley’s decision.
Finally, the majority cites various “breaks in the causal chain” and alleged misconduct committed by plaintiff that they believe is fatal to plaintiffs claim. Particularly, in addition to referring to the temporal gap during which plaintiff remained the police chief, the majority opines that plaintiffs initial complaints about the ordinance did not upset Smiley and that Smiley enforced the ordinance after plaintiff complained. The majority also opines that plaintiff inadequately disciplined subordinates, sent sexually explicit e-mail messages on a city computer, discriminated against a female officer, and forged a signature on a budget memorandum.
While there was evidence that there may have been a variety of reasons for Smiley’s decision not to reappoint plaintiff, there was ample evidence that plaintiffs reporting of the ordinance violation was a motivating factor for the adverse employment action. Although plaintiff initially objected in March 2003 to the lack of vacation payout, plaintiff did not couch his objection in terms of an ordinance violation until January 2004; therefore, the absence of any animosity by Smiley toward plaintiff in 2003 is understandable. There was certainly evidence at trial that Smiley was upset with plaintiff over the ordinance issue after plaintiff reported Smiley’s violation of the ordinance and threatened to “pursue [it] as a violation of the law” in January 2004. In particular, there was evidence that within a few months, Smiley was demonstrating an antipathetic attitude toward plaintiff. On June 7, Smiley issued a memorandum to plaintiff that requested a meeting with him the same day; in the memorandum, Smiley stated
To the extent that the majority argues that plaintiffs reporting of the ordinance violation was not whistleblowing because the issue at hand
Without referring to any previous interpretations of the WPA, our Supreme Court in Whitman stated that “MCL 15.362 makes plain that protected conduct does not include reports made by an employee that the employee knows are false, or reports given because the employee is requested to participate in an investigation by a public body.” Whitman, 493 Mich at 313 (emphasis added), see also id. at 320 (“nor is there any indication that a public body requested that Whitman participate in an investigation”). This interpretation of MCL 15.362 by the Supreme Court is contrary to previous interpretations of the statute by both the Supreme Court and this Court. See Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998), Anzaldua v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011), Truel v Dearborn, 291 Mich App 125, 138-139; 804 NW2d 744 (2010), Shaw v Ecorse, 283 Mich App 1, 10-11; 770 NW2d 31 (2009), Ernsting v Ave Maria College, 274 Mich App 506, 510; 736 NW2d 574 (2007), Manzo v Petrella and Petrella & Associates, PC, 261 Mich App 705, 712-713; 683 NW2d 699 (2004), Trepanier v Nat’l Amusements, Inc, 250 Mich App 578, 583; 649 NW2d 754 (2002), and Henry, 234 Mich App at 410-411. I believe this to be an inadvertent misstatement of the law, because it was not relevant to the analysis in Whitman. I urge the Supreme Court to clarify whether a proper interpretation of MCL 15.362 includes as protected activity a person’s participation in an investigation as requested by a public body, including reports given in the process.
In footnote 14 of the majority opinion, the majority describes as “cynical” my use of the phrase “gentlemen’s agreement,” as if it is my own derogatory spin on the facts. Meanwhile, the majority avoids the phrase like the plague, describing the agreement instead as a “decision to waive the ordinance.” But the description, “gentlemen’s agreement,” was coined by Smiley himself. It was used extensively throughout the trial by the parties and the witnesses. Even our Supreme Court used it. Whitman, 493 Mich at 307. Smiley testified that when plaintiff raised the issue of payment for vacation days, Smiley responded “we had a gentlemen’s agreement.” An example of a spin on the facts might include the majority’s description of plaintiffs acts as “selfish,” or its effort to
I also take issue with the majority’s conclusion that seeking to enforce Ordinance 68C — which defendants never amended during the relevant period — “harms the public interest.” The public interest is furthered when a police chief chooses to work every day to protect and serve the public rather than taking unneeded sick, personal, and vacation time. The majority concludes that a public servant’s “personal sacrifice” in waiving his or her rights under Ordinance 68C advances the public interest. While the city may save expenses that way, the public will literally not he served on the days those servants are absent from work, taking their allotted sick, personal, and vacation time, because here, they were repeatedly warned by the mayor that they had better “use it or lose it” after he foisted upon them a cost-saving method in the guise of a “gentleman’s agreement.” Saving taxpayer money is in the public interest, but it can be accomplished legally. Plaintiff undertook to enforce an ordinance, and as a result, nine employees were compensated for their unused vacation time pursuant to the ordinance, for a total cost of $17,762.93 — not a vast, make-it-or-break-it amount of money in the city’s budget.
In brief response to Judge O’Connell’s rather creative concurring opinion, this is not a contract action. The plain language of the WPA does not allow for Judge O’Connell’s proposed injection of an extraneous theory of defense. And even if one considered a “gentlemen’s agreement” foisted upon the city’s nonunion employees a contract, there was no consideration. Furthermore, a contractual provision to violate the law is not enforceable. Rory v Continental Ins Co, 473 Mich 457,470; 703 NW2d 23 (2005).
We review de novo a trial court’s denial of a motion for directed verdict or JNOV Abke v Vandenberg, 239 Mich App 359, 361; 608 NW2d 73 (2000).
The majority contends that Smiley did not reappoint plaintiff “almost immediately after learning about these numerous, other valid reasons in late 2007.” This was Smiley’s testimony, but there was substantial evidence to the contrary, casting doubt on his credibility. For example, Smiley himself testified that he learned about the e-mail issue a year earlier in the fall of 2006, and there was evidence that he knew years earlier (the spring of 2004) about plaintiffs discipline of the officers who pulled Smiley’s car over after he left a bar.
The majority contends that “plaintiff has provided no evidence to refute the mayor’s stated and compelling reasons for not reappointing
The majority downplays the evidence of these statements by Smiley, opining that “[i]t is difficult to see how a statement the mayor allegedly made after he had already declined to reappoint plaintiff would influence his decision not to reappoint him.” But the majority is familiar with the concept of a confession or admission. The statements that Smiley made to the lieutenants and sergeants obviously shed light on the reason why he declined to reappoint plaintiff as the police chief. Reasonable minds could (and did) find that the ordinance issue was one of the reasons that made a difference in Smiley’s decision not to reappoint plaintiff. Notably, the jury found in plaintiffs favor even after hearing all of defendants’ evidence about plaintiff that the majority found so disturbing.
Opinion of the Court
ON REMAND
I. PLAINTIFF IS NOT ENTITLED TO WPA PROTECTION
In this Whistleblowers’ Frotection Act (WFA)
The Michigan Supreme Court reversed, and “disavowed” what we thought was the principle articulated in Shallal on the relevance of plaintiffs private motivations.
In this case, plaintiffs actions are unquestionably and objectively contrary to the public interest. That is, regardless of his personal motivations (now irrelevant), his “whistleblowing” effort sought enforcement of a law that harmed, not advanced, the public interest.
The law in question, Burton Ordinances 68-C, is not a law that protects the public interest, but rather an ordinance that reads much like a standard, garden-variety collective-bargaining provision for wages and benefits.
The waiver of the benefits contained in 68-C — which plaintiff characterizes as a “violation of law” — has its origins in a severe financial crisis that afflicted the city of Burton in the earlier 2000s.
Only one department head objected to this waiver of perks: plaintiff, who was then the chief of police.
The WPA is designed to ferret out violations of the law that injure the public, especially when applied to public-sector defendants.
This is why this is not the usual case, where a report of a violation of law normally constitutes conduct in the public interest.
Because he is not a “whistleblower” under the WPA, no juror could legally find in favor of plaintiff on his WPA retaliation claim. The trial court’s denial of defendants’ request for JNOV is accordingly reversed.
II. CAUSATION
We also held in our earlier opinion that plaintiffs
A. TRUST, NOT WHISTLEBLOWING
As noted, in 2003, the mayor’s administrative team voted to voluntarily take a wage freeze and forgo the perk of payment for accumulated sick days to save taxpayers’ money and avoid layoffs and reduced services.
A third party who attended plaintiffs June 2004 meeting with the mayor made handwritten notes of the discussion, which state: “ ‘Mayor = No Trust — 68-C (vacation) — lack of communication[.]’ ”
B. THE ALLEGED RETALIATION IS TEMPORALLY REMOTE FROM ALLEGED WHISTLEBLOWING
Plaintiffs claim has a serious temporal problem: he alleges that he was not reappointed in late 2007 for events that took place in late 2003 and early 2004. Our courts have taken pains to stress that the length of time between an alleged whistleblowing and an adverse employment action is not dispositive of retaliation— when those two events are close in time (i.e., days, weeks, or a few months apart).
Here, there is an enormous temporal gap between plaintiffs alleged whistleblowing and the supposed retaliation, which belies any causal connection between the two. As noted, plaintiffs demands to receive compensation under 68-C took place in 2003 and early 2004. The mayor declined to reappoint him police chief in November 2007 — almost four years after the supposed whistleblowing. Of course, the mayor, as the top execu
C. BREAKS IN PLAINTIFF’S SUPPOSED CAUSAL CHAIN
The long period of time between plaintiffs supposed whistleblowing and the mayor’s decision not to reappoint him involves another aspect that is fatal to plaintiffs claim: numerous breaks in the causal chain. Plaintiff s first complaints regarding the administrative team’s waiver of 68-C perks in March 2003 clearly did not cause the mayor to retaliate. Indeed, the mayor
D. PLAINTIFF’S MISCONDUCT LED TO ADVERSE EMPLOYMENT ACTION
In any event, plaintiff has provided no evidence to refute the mayor’s stated and compelling reasons for not reappointing him: plaintiff engaged in serious misconduct and misused his office. After his reelection in November 2007, the mayor reevaluated his entire administrative team. During this period, he was advised of allegations of plaintiffs serious misconduct in office by officers in plaintiff’s department. Among other things, these included allegations that plaintiff: (1) meted out inadequate discipline to subordinates who abused their power, (2) misused a city computer to exchange sexually explicit e-mail messages with a woman who is not his wife, (3) discriminated against a female officer, and (4)
Plaintiff made no specific effort before this Court to deny these allegations against him, other than to state, self-servingly and without support, that they are “merely a pretext,” and to assert “that his personnel file demonstrates that his performance as a police chief was good, that he had received numerous awards, and that there were never any disciplinary actions against him.”
III. REPLY TO THE DISSENT
A. INTRODUCTION
While we respect and join in the dissent’s insistence on adhering to the strict letter of the law, we strongly disagree with the dissent’s interpretations and conclusions. In our judgment, the dissent ignores the reality that plaintiffs conduct has nothing to do with “whistle-blowing” in the sense envisioned by MCL 15.361 et seq. Indeed, plaintiffs conduct represents the antithesis of the WPA’s purpose.
As an objective reality, plaintiffs conduct harmed, not helped, the public interest, just the opposite of what the WPA was intended to do. Any observer of the economic crisis must conclude that the administrative team’s waiver of the benefits contained in 68-C advanced the interest of the taxpayers in the financially
The same lack of realism permeates the dissent’s causation analysis. Despite the fact that in the city of Burton, as in most cities, the chief of police, by law, serves “at the pleasure” of the mayor, the dissent suspends common sense and actually claims that the mayor, who was upset with what he regarded as plaintiffs untrustworthiness in 2003 and 2004, would wait almost four full years before not reappointing plaintiff because of these old disputes. Reaching this conclusion ignores the reality that the mayor reappointed plaintiff in 2003, after this disagreement surfaced, and worked closely with him for almost four subsequent years. It also ignores the admission of plaintiff himself that the mayor never retaliated against him after the 2004 disagreement, and that even after heated words in June 2004, they patched up their differences and worked together for almost four years without any incident. And it ignores numerous revelations of alleged serious misconduct that the mayor learned of in November 2007 — the month that the mayor decided not to reappoint plaintiff.
What is the evidence that a stale, minor incident from early 2004 allegedly loomed so large after all these years in late 2007? Not any direct evidence, and indeed no evidence of any kind, oral or written, that this was even a factor at the time the mayor made his decision. Rather, we are supposed to believe that during a discussion by the mayor with the commanders of the police
This is a fact, but a fact that has nothing to do with “whistleblowing,” and nothing to do with the reasons for nonreappointment. It is a fact of life that when an entire administrative team shares in financial sacrifice in times of economic crisis, and one key member of that team either backs out of the agreement or breaks ranks with those who make the sacrifice, that there will be issues of trust and disappointment. But to elevate this incident to be the cause of a nonreappointment four years later, in the face of new revelations of alleged serious misconduct and the reality that the chief serves at the pleasure of the mayor, simply defies logic, common sense, and the reality of city management.
B. LAW OF THE CASE AND OBJECTIVE ADVANCEMENT OF THE PUBLIC INTEREST
We and the dissent both cite the law of the case doctrine, but disagree on the interpretation of the Supreme Court’s remand instructions.
As we noted, there is a distinction between a plaintiffs private motivations (now irrelevant) for reporting a violation of the law and the more fundamental question of whether the alleged reporting objectively advances the public interest. Though the Supreme Court addressed (and disavowed) the former analysis in its opinion, it said nothing and thus obviously did not rule on the latter, nor did we in our reversed opinion. Because the Supreme Court instructed us to address “all remaining issues on which [we] did not formally
We fundamentally disagree with the dissent’s assertion that reporting a violation of any law advances the public interest, because this observation is inaccurate and ignores the reality of this case. In rare instances— such as this one — reporting violation of a law will not advance the public interest, and will in fact be contrary to the public interest.
For these reasons, we disagree with the dissent’s observations on the law of the case, and think that we have an obligation, under the WPA, to hold that not all reports of legal violations are whistleblowing, because not all reports of legal violations objectively advance the public interest.
C. CAUSATION
We also take issue with the dissent’s causation analysis because it again ignores the reality of this public-sector setting.
These stated reasons for declining to reappoint plaintiff, of which the mayor learned in November 2007, undermine plaintiffs claim that he was not reappointed for whistleblowing when two additional factors are added as context. As noted, the mayor could terminate plaintiffs employment at any time. Despite plaintiffs consistent demands that he receive compensation under 68-C in 2003 and 2004 (which he did) the mayor only declined to reappoint him in late 2007 — again, an almost four year gap between the alleged whistleblowing activity and the adverse employment action.
The dissent wrongly implies that we give this temporal gap undue weight in our analysis and that it is the sole factor motivating our holding. Rather, the temporal gap is of enormous importance when viewed in conjunction with the other aspects of this case, namely: (1) the mayor’s ability to terminate plaintiffs employment at any time, (2) the numerous other, valid reasons the mayor gave to not reappoint plaintiff, and (3) the fact that the mayor did not reappoint plaintiff almost immediately after learning about these numerous, other valid reasons in late 2007.
IV CONCLUSION
Because no reasonable fact-finder could legally find in favor of plaintiff on his claim under the WPA, we reverse the trial court’s denial of defendants’ motion for JNOV and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
A trial court’s ruling on a motion for judgment notwithstanding the verdict (JNOV) is reviewed de novo on appeal. Garg v Macomb Co Community Mental Health Servs, 472 Mich 263,272; 696 NW2d 646 (2005). “When reviewing the denial of a motion for JNO ( the appellate court views the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine if a party was entitled to judgment as a matter of law.” Genna v Jackson, 286 Mich App 413, 417; 781 NW2d 124 (2009).
MCL 15.361 et seq.
Whitman v City of Burton, 293 Mich App 220; 810 NW2d 71 (2011).
Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997).
Specifically, plaintiff first voiced his opposition to the city ordinance at issue hy stating that “ ‘[m]y current life style revolves around these very things [i.e., additional payments] that have been negotiated for me See Whitman, 293 Mich App at 225.
Whitman v City of Burton, 493 Mich 303, 306; 831 NW2d 223 (2013). A summary of the facts relevant to this opinion can be found in Whitman, 493 Mich at 306-311, and Whitman, 293 Mich App at 222-228.
Whitman, 493 Mich at 306.
Id. at 320.
Our understanding of the Supreme Court’s statement that plaintiff “engaged in conduct protected under the WPA,” id., is that it is predicated on a narrow reading of the WPA: namely, one that only analyzes the relevancy of a plaintiffs personal motivations for “blowing
Our Court has noted the distinction between an employee’s personal motives for reporting legal violations and whether that reporting actually advanced the public interest. See Phinney v Perlmutter, 222 Mich App 513, 554; 564 NW2d 532 (1997) (“[i]n addition, whether plaintiff sought personal gain in making her reports, rather than the public good, is legally irrelevant and need not be addressed except to note that the reporting of misconduct in an agency receiving public money is in the public interest”) (emphasis added). Phinney’s holdings on unrelated matters have likely been abrogated by Garg, 472 Mich at 290.
See Burton Ordinances 68-25C, § 8(1) (“68-C”). As noted by the Supreme Court, Burton’s ordinance numbering and policy regarding unused leave time have changed since the time of trial. Whitman, 493
Whitman, 293 Mich App at 224.
Whitman, 493 Mich at 307.
The dissent cynically refers to this action as a “cost-saving method in the guise of a ‘gentleman’s agreement.’ ”
Whitman, 493 Mich at 307. It appears that plaintiff attended the March 2003 meeting when the department heads decided to waive the perks in 68-C, hut it is unclear whether plaintiff voiced an opinion on the waiver at the meeting.
Id.
“[The WPA encourages employees to assist in law enforcement] with an eye toward promoting public health and safety. The underlying purpose of the [WPA] is protection of the public. The act meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law. Without employees who are willing to risk adverse employment consequences as a result of whistleblowing activities, the public would remain unaware of large-scale and potentially dangerous abuses.” Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378-379; 563 NW2d 23 (1997) (emphasis added).
Cases from our sister states interpreting their whistleblower statutes and jurisprudence recognize the distinction between reported legal violations that affect the public interest (which are protected) and reported legal violations that affect solely private interests (which are not). Though these cases involve internal corporate disputes — as opposed to reports of violated municipal ordinances — we think that the reasoning is equally relevant to this case, where the violated ordinance did not advance the public interest. See Garrity v Overland Sheepskin Co of Taos, 1996-NMSC-032, ¶ 18; 121 NM 710, 715; 917 P2d 1382 (1996) (“[w]hen an employee is discharged for whistleblowing, the employee must also demonstrate that his or her actions furthered the public interest rather than served primarily a private interest”), and Darrow v Integris Health, Inc, 2008 Okla 1, ¶ 16; 176 P3d 1204 (2008) (“to distinguish whistleblowing claims that would support a viable common-law tort claim from those that would not, the public policy breached must truly impact public rather than the employer’s private or
To prevail under the WPA, plaintiff must “establish a causal connection between [the] protected conduct and the adverse employment decision by demonstrating that his employer took adverse employment action because of his protected activity.” Whitman, 493 Mich at 320. In the absence of direct evidence of retaliation (which plaintiff does not present), he must present indirect evidence to “show that a causal link exists between the whistleblowing act and the employer’s adverse employment action.” Debano-Griffin v Lake Co, 493 Mich 167,176; 828 NW2d 634 (2013). A plaintiff’s presentation of indirect evidence is analyzed under “the burden-shifting framework set forth in McDonnell Douglas [Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)].” Id. Applying this standard to retaliation claims, a plaintiff must show that his “protected activity” under the WPA was “one of the reasons which made a difference in determining whether or not to [discharge] the plaintiff.” Matras v Amoco Oil Co, 424 Mich 675, 682; 385 NW2d 586 (1986) (emphasis added; quotation marks and citation omitted). In other words, “ ‘[t]o establish causation, the plaintiff must show that his participation in [protected activity] was a “significant factor” in the employer’s adverse employment action, not just that there was a causal link between the two.’ ” Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d 241 (2004) (citation omitted). Because Debano-Griffin uses the McDonnell Douglas framework, originally designed for employment-discrimination
Whitman, 293 Mich App at 232, n 1.
Whitman, 493 Mich at 309.
Id.
It is difficult to see how a statement the mayor allegedly made after he had already declined to reappoint plaintiff would influence his decision not to reappoint him.
See, for example, West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003) (to satisfy causation requirement under the WPA, a plaintiff must show “something more than merely a coincidence in time between protected activity and adverse employment action”); Tuttle v
In its opinion, the United States Court of Appeals for the Sixth Circuit noted that “[o]ur review of the law shows that multiyear gaps between the protected conduct and the first retaliatory act have been insufficient to establish the requisite causal connection.” Fuhr, 710 F3d at 676. This observation is correct; interpretations of our sister states’ whistleblower laws and jurisprudence have made similar observations on how a long time span between the alleged whistleblowing and supposed retaliation weigh against finding causation. See Blake v United American Ins Co, 37 F Supp 2d 997, 1002 (SD Ohio, 1998) (holding that alleged whistleblowing action that took place five years before the plaintiffs termination was not “close enough in time ... to support a claim of retaliation”); Anderson v Meyer Broadcasting Co, 2001ND 125, ¶ 35; 630 NW2d 46 (2001) (holding that a “lengthy” delay of approximately a year “between [plaintiffs] reports and her termination does not support an inference she was fired because of the protected activity”).
Burton Ordinances 6.2(b) states that the chief of police serves “at the pleasure of the Mayor.”
See Whitman, 493 Mich at 309. Plaintiff admitted at trial that he used a city computer to exchange sexually explicit messages with a woman who is not his wife. Plaintiff makes no specific effort to deny the other allegations, but states that they are “merely a pretext.” Id. at 310.
Whitman, 293 Mich App at 227.
Whitman, 493 Mich at 309-310.
Whitman, 493 Mich at 321.
See Dolan, 454 Mich at 378-379.
See, for example, MCL 287.277 (mandating that upon receiving notice of the presence of unlicensed dogs in the county from the county treasurer, the prosecuting attorney “shall at once commence the necessary proceedings against the ownerfs] of the dog[s]”); MCL 750.542 (barring bands from playing the national anthem “as a part or selection of a medley of any kind” or with any “embellishments of national or other melodies” and the anthem’s use “for dancing or as an exit march”); and MCL 750.102 (stating that “[a]ny person who shall wilfully blaspheme the holy name of God, by cursing or contumeliously reproaching God” is guilty of a misdemeanor).
We cite these examples not to mock these laws or the sentiments they express, but to demonstrate that not all individuals who report violations of laws are whistleblowers, because reporting a violation of law in and of itself does not always objectively advance the public interest. For instance, many
Reference
- Full Case Name
- WHITMAN v. CITY OF BURTON (ON REMAND)
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- 7 cases
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- Published