Bruce Whitman v. City of Burton

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Syllabus Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
WHITMAN v CITY OF BURTON
Docket No. 143475. Argued November 15, 2012 (Calendar No. 5). Decided May 1, 2013.
Bruce Whitman brought an action in the Genesee Circuit Court against the city of Burton
and the mayor of the city, Charles Smiley, alleging that defendants had violated the
Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., when the mayor declined to
reappoint plaintiff as police chief for the city in November 2007. Plaintiff alleged that he was
not reappointed because, in early 2004, he had threatened to pursue criminal charges against the
mayor if the city did not comply with a city ordinance and pay plaintiff for the unused sick,
personal, and vacation leave time he had accumulated in 2003. Defendants maintained that
plaintiff, along with other city administrators, had agreed to forgo any payout for accumulated
leave in order to avoid a severe budgetary shortfall and that plaintiff was not reappointed because
the mayor was dissatisfied with many aspects of plaintiff’s performance as chief of police. A
jury returned a verdict in favor of plaintiff. The court, Geoffrey L. Neithercut, J., entered a
judgment consistent with the verdict and thereafter denied defendants’ motion for judgment
notwithstanding the verdict (JNOV) or a new trial. Defendants appealed. The Court of Appeals,
O’CONNELL, P.J., and SAAD, J. (BECKERING, J., dissenting), reversed the circuit court’s denial of
defendants’ motion for JNOV and remanded the case for further proceedings, concluding that
plaintiff’s claim was not actionable under the WPA because, in threatening to pursue criminal
charges, plaintiff had acted to advance his own financial interests and not out of an altruistic
motive of protecting the public. 293 Mich App 220 (2011). The Supreme Court granted leave to
appeal. 491 Mich 913 (2012).
In an opinion by Justice MARY BETH KELLY, joined by Chief Justice YOUNG and Justices
CAVANAGH, MARKMAN, and ZAHRA, the Supreme Court held:
The WPA protects an employee against an employer’s retaliatory employment actions
when the employee is engaged in protected activity. To establish a prima facie case under the
WPA, a plaintiff must show that (1) he or she was engaged in protected activity as defined by the
act, (2) he or she suffered an adverse employment action, and (3) a causal connection exists
between the protected activity and the adverse employment action. The statutory language does
not address an employee’s primary motivation, nor does it imply or suggest that any motivation
must be proved as a prerequisite to bringing a claim. Therefore, there is no statutory basis for
imposing a primary-motivation requirement, and judicial imposition of that requirement would
violate the fundamental rule of statutory construction, which precludes judicial construction and
interpretation when the statutory language is clear and unambiguous. In Shallal v Catholic
Social Servs of Wayne Co, 455 Mich 604 (1997), the Supreme Court considered an employee’s
primary motivation for pursuing a claim under the WPA and concluded that because the
employee had not threatened to report her employer out of an altruistic motive of protecting the
public, there was no causal connection between the employee’s discharge and her protected
activity. Shallal, however, did not hold that an employee’s motivation is a factor in determining
whether the employee engaged in protected activity. To the extent that Shallal has been
interpreted as requiring a specific motive, any language to that effect is disavowed as dicta. In
this case, plaintiff engaged in conduct protected under the WPA when he reported the mayor’s
violation of the local ordinance to the mayor himself, to a city administrator, and to the city
attorney. To recover under the WPA, plaintiff therefore had to establish a causal connection
between this protected conduct and the adverse employment decision by demonstrating that
defendants took the adverse employment action because of plaintiff’s protected activity.
However, because the Court of Appeals did not address the issue of causation when it held that
plaintiff’s WPA claim failed as a matter of law, this question had to be resolved on remand for
the purpose of determining whether the circuit court’s denial of defendants’ motion for JNOV
was proper.
Reversed and remanded to the Court of Appeals for consideration of the remaining issues
on appeal.
Justices MCCORMACK and VIVIANO took no part in the decision of this case.
©2013 State of Michigan
Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
FILED MAY 1, 2013
STATE OF MICHIGAN
SUPREME COURT
BRUCE WHITMAN,
Plaintiff-Appellant/Cross-
Appellee,
v No. 143475
CITY OF BURTON and CHARLES
SMILEY,
Defendants-Appellees/Cross-
Appellants.
BEFORE THE ENTIRE BENCH (except MCCORMACK and VIVIANO, JJ.)
MARY BETH KELLY, J.
This case involves the proper interpretation of the Whistleblowers’ Protection Act
(WPA),1 which protects an employee against an employer’s retaliatory employment
actions, including discharge, when the employee is engaged in protected activity.
Specifically, we address whether this Court’s decision in Shallal v Catholic Social
1
MCL 15.361 et seq.
Services of Wayne County2 requires an employee engaging in protected conduct to have,
as his or her primary motivation for engaging in that conduct, a desire to inform the
public on matters of public concern, rather than personal vindictiveness.
Nothing in the statutory language of the WPA addresses the employee’s
motivation for engaging in protected conduct, nor does any language in the act mandate
that the employee’s primary motivation be a desire to inform the public of matters of
public concern. Rather, the plain language of MCL 15.362 controls, and we clarify that a
plaintiff’s motivation is not relevant to the issue whether a plaintiff has engaged in
protected activity and that proof of primary motivation is not a prerequisite to bringing a
claim. To the extent that Shallal has been interpreted to mandate those requirements, it is
disavowed. Accordingly, we reverse the judgment of the Court of Appeals and remand
this matter to that Court for consideration of all remaining issues, including whether the
causation element of MCL 15.362 has been met.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff, Bruce Whitman, was employed by defendant city of Burton as the chief
of police from the time of his appointment in March 2002 until November 2007 when
codefendant Charles Smiley, the mayor of Burton (the Mayor), declined to reappoint him.
Whitman thereafter brought this action under the WPA, claiming that the Mayor’s
decision not to reappoint him was prompted by Whitman’s repeated complaints to the
Mayor and the city attorney that the refusal to pay Whitman’s previously accumulated
unused sick and personal leave time would violate a Burton ordinance.
2
Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997).
2
Burton Ordinances 68-25C, § 8(I) (Ordinance 68C)3 allows for unelected
administrative officers, including Whitman, to be compensated for unused sick, personal,
and vacation time on an annual basis.4 Because of significant budgetary problems in
March 2003, the Mayor and the city department heads made a “gentleman’s agreement”
to forgo payments of unused sick, personal, and vacation time as a budget-cutting
measure, which was acknowledged in a memorandum dated March 18, 2003. Although
the agreement was memorialized, the city officials did not amend or rescind the
ordinance allowing compensation for the unused days. On March 20, 2003, Whitman
sent a letter to the Mayor objecting to the austerity measures outlined in the March 18th
memorandum.
Despite receiving notice that he would not receive compensation for the unused
leave time, Whitman continued to accumulate unused vacation, personal, and sick days
throughout 2003. In January 2004, Whitman undertook a series of actions to secure
payment for his 2003 unused days, repeatedly asserting that the city was acting in
violation of Ordinance 68C. Specifically, on January 9, 2004, Whitman sent a letter to
3
It appears that Burton’s ordinance numbering and policy regarding unused leave time
have changed since the time of the trial of this case. Because those changes are not
relevant to our analysis, this opinion refers to the ordinance numbering and language as it
was introduced during trial.
4
Ordinance 68C provided, in pertinent part:
Administrative Officers may accumulate unused sick/personal days
until a 90 day accumulation has been created. Vacation days and unused
holidays may also be credited for purpose of the accumulation. At the
option of any administrative officer, any unused sick and/or personal,
and/or vacation days may be paid in January in the year after which they
are accumulated.
3
the Mayor requesting payout for his 2003 unused days. In pertinent part, Whitman’s
letter stated, “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.”
On January 12, 2004, Whitman attended a staff meeting and advised that he had
spoken to the city attorney about the issue, and that refusing to pay employees for unused
days was an ordinance violation that needed to be addressed. On January 15, 2004,
Whitman wrote a letter to Dennis Lowthian, an administrative officer for the city who
had been acting as a spokesperson for all of the administrators. In this letter, Whitman
reiterated his concerns, stating, “I cannot allow them to violate the ordinance by ‘forcing
waivers’ of ordinance given rights. I believe it is my job as a police officer to point the
violation out and I will pursue it as far as it needs to go.”
On January 23, 2004, Whitman once again wrote the city attorney, reasserting that
the failure of the city to pay him for unused days was a violation of the ordinance.
Whitman stated, “[T]his is a violation of the ordinance . . . . If I need to re address [sic]
through the council I will, if you have any input on resolving this I would appreciate it or
I will be forced to pursue this as a violation of the law and will address it as such.” On
January 29, 2004, the city relented and, on the advice of the city attorney that failure to
pay Whitman would be in violation of Ordinance 68C, authorized payments for all
unused days to Whitman and all other officers who had requested it.
It was this series of actions that Whitman claims served as the catalyst for the
Mayor’s decision not to reappoint him in 2007. According to Whitman, the Mayor’s
conduct after the city’s authorization of payment for his unused vacation and sick days
further substantiates the validity of his WPA claim. Whitman alleges that in a letter dated
4
June 7, 2004, the Mayor stated that he was considering removing Whitman as police
chief, specifically citing Whitman’s actions in pursuing compensation for his unused
vacation and sick days as a basis for the Mayor’s claim that he could not trust Whitman.
During a meeting that took place later that same day, Whitman claims that the Mayor was
very angry at him and yelled, “[Y]ou tried to put me in jail” over the Ordinance 68C
issue. Whitman also claims that the Mayor angrily pointed his finger at him, stating, “I
demand total allegiance to me from my administrators[.]” A coworker who was present
during that meeting took handwritten notes that stated, “Mayor = No Trust — 68-C
(vacation) — lack of communication[.]”
Following his reelection in 2007, the Mayor declined to reappoint Whitman.
Shortly thereafter, the Mayor attended a meeting with members of the police department.
Several officers in attendance at this meeting reported that the Mayor stated that he and
Whitman “got off on the wrong foot” because of the Ordinance 68C issue and that
Whitman’s conduct relating to the ordinance got them off to a “bad start.” There were
also allegations by officers who stated that after the meeting, the Mayor had indicated
that “it all goes back to” the Ordinance 68C issue, and that the Mayor had not been happy
with Whitman since shortly after his appointment because of the Ordinance 68C issue.
Defendants deny that the Mayor’s decision to appoint another police chief in 2007
was in any way related to Whitman’s complaints about the Ordinance 68C violation,
asserting that the decision was the result of the Mayor’s dissatisfaction with Whitman’s
performance. Specifically, defendants claim there were numerous reasons for Smiley’s
decision not to reappoint Whitman, including Whitman’s alleged inadequate discipline of
officers who inappropriately stopped the Mayor after the Mayor visited a local bar,
5
Whitman’s alleged e-mailing of inappropriate messages using the city’s computer,
Whitman’s alleged discrimination against a female officer, and Whitman’s alleged
forgery of a signature on a budget memo. Whitman, however, asserts 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.
Whitman further alleges that any performance issues cited by the Mayor were merely a
pretext.5
Whitman thereafter brought this WPA action against both the city of Burton and
the Mayor in his individual capacity. At trial, the jury found that Whitman had engaged
in protected conduct and that his protected conduct made a difference in the Mayor’s
decision not to reappoint him as police chief. The jury awarded Whitman total damages
in the amount of $232,500.00, and the circuit court subsequently entered a judgment in
that amount. Defendants then moved for judgment notwithstanding the verdict (JNOV)
or for a new trial, which the circuit court denied.
The Court of Appeals reversed in a split published opinion,6 with the majority
holding, as a matter of law, that Whitman’s claim was not actionable under the WPA
because, “in threatening to inform the city council or prosecute the mayor for a violation
of Ordinance 68-C, plaintiff clearly intended to advance his own financial interests. He
did not pursue the matter to inform the public on a matter of public concern.”7 On the
5
See Debano-Griffin v Lake Co, 493 Mich 167, 176; ___ NW2d ___ (2013).
6
Whitman v City of Burton, 293 Mich App 220; 810 NW2d 71 (2011).
7
Id. at 228-229.
6
basis of its belief that a “critical inquiry” in determining the validity of a claim under the
WPA “is whether the employee acted in good faith and with ‘a desire to inform the public
on matters of public concern . . . ,’”8 the Court of Appeals concluded that Whitman had
“acted entirely on his own behalf” such that “[u]nder these facts, no reasonable juror
could conclude that plaintiff threatened to prosecute defendants ‘out of an altruistic
motive of protecting the public.’”9
Accordingly, the Court of Appeals reversed the circuit court’s denial of
defendants’ motion for JNOV and remanded the case for further proceedings. The
majority did not decide any of the remaining issues, including causation. This Court
granted leave to appeal.10
II. STANDARD OF REVIEW
This case involves the interpretation and application of a statute, which is a
question of law that this Court reviews de novo.11 When interpreting a statute, we follow
the established rules of statutory construction, the foremost of which is to discern and
8
Id. at 230, quoting Shallal, 455 Mich at 621 (emphasis added; citation and quotation
marks omitted).
9
Whitman, 293 Mich App at 231, quoting Shallal, 455 Mich at 622.
10
We ordered the parties to brief “whether Shallal v Catholic Social Servs of Wayne Co,
455 Mich 604 (1997), correctly held that the primary motivation of an employee pursuing
a whistleblower claim must be a desire to inform the public on matters of public concern,
as opposed to personal vindictiveness.” Whitman v City of Burton, 491 Mich 913 (2012).
11
People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011); Miller-Davis Co v Ahrens
Constr, Inc, 489 Mich 355, 361; 802 NW2d 33 (2011).
7
give effect to the intent of the Legislature.12 To do so, we begin by examining the most
reliable evidence of that intent, the language of the statute itself.13 If the language of a
statute is clear and unambiguous, the statute must be enforced as written and no further
judicial construction is permitted.14 Effect should be given to every phrase, clause, and
word in the statute and, whenever possible, no word should be treated as surplusage or
rendered nugatory.15 Only when an ambiguity exists in the language of the statute is it
proper for a court to go beyond the statutory text to ascertain legislative intent.16
III. ANALYSIS
A. THE WPA
The WPA was first enacted by the Michigan Legislature in 1980 to “provide
protection to employees who report a violation or suspected violation of state, local, or
federal law . . . .”17 The WPA furthers this objective by removing barriers that may
interfere with employee efforts to report those violations or suspected violations,18 thus
12
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
13
Id.14
Id.15
Baker v Gen Motors Corp, 409 Mich 639, 665; 297 NW2d 387 (1980).
16
Sun Valley, 460 Mich at 236.
17
Preamble, 1980 PA 469.
18
Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378-379; 563 NW2d
23 (1997).
8
establishing a cause of action for an employee who has suffered an adverse employment
action for reporting or being about to report a violation or suspected violation of the law.
The relevant portion of the WPA, MCL 15.362, provides as follows:
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.
To establish a prima facie case under the WPA, a plaintiff need only show that (1)
he or she was engaged in protected activity as defined by the act, (2) he or she suffered an
adverse employment action, and (3) a causal connection exists between the protected
activity and the adverse employment action.19 Additionally, 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.
Defendants argue that in order to assert an actionable claim under the WPA, an
employee’s primary motivation for engaging in protected conduct must be “a desire to
inform the public on matters of public concern.” However, MCL 15.362 does not
address an employee’s “primary motivation,” nor does the statute’s plain language
19
Chandler v Dowell Schlumberger Inc, 456 Mich 395, 399; 572 NW2d 210 (1998);
Shallal, 455 Mich at 610.
9
suggest or imply that any motivation must be proved as a prerequisite for bringing a
claim. Further, the WPA does not suggest or imply, let alone mandate, that an
employee’s protected conduct must be motivated by “a desire to inform the public on
matters of public concern” as a prerequisite for bringing a claim. Therefore, we hold that,
with regard to the question whether an employee has engaged in conduct protected by the
act, there is no “primary motivation” or “desire to inform the public” requirement
contained within the WPA. Because there is no statutory basis for imposing a motivation
requirement, we will not judicially impose one. To do so would violate the fundamental
rule of statutory construction that precludes judicial construction or interpretation where,
as here, the statute is clear and unambiguous.20
B. SHALLAL
In Shallal, this Court reviewed the requirements of the WPA in a case in which the
plaintiff, Janette Shallal, attempted to use the WPA as an extortionate tool in order to
frustrate her employer’s decision to terminate her for poor performance and misconduct.
Shallal was employed as an adoption department supervisor for Christian Social Services
(CSS), a nonprofit social service agency that provided adoption services. During her
employment, Thomas Quinn was appointed as president of the agency. Approximately
one year after Quinn’s appointment, Shallal learned of allegations that Quinn had been
drinking on the job and misusing the agency’s funds. While Shallal discussed these
20
Sun Valley, 460 Mich at 236.
10
allegations with various coworkers, at no time did she report Quinn’s violations to the
board of directors or to any other responsible body.
Shallal’s termination was precipitated by her inadequate response to a report of
child abuse pertaining to an adoption that she had previously supervised, which
ultimately resulted in catastrophic injuries to the child. Upon learning of the child’s
injuries, Shallal notified the Department of Social Services (DSS), which faulted both
Shallal’s poor performance and CSS’s institutional practices. DSS did not, however,
recommend Shallal’s dismissal. Indeed, according to Shallal, similar errors did not result
in the discharge of other employees. DSS officials then met with Quinn to discuss their
findings, and Quinn subsequently addressed the matter with Shallal. Their discussion
became heated, with “Shallal stat[ing] her intention to report Quinn’s abuses of alcohol
and agency funds if he failed to, in her words, ‘straighten up.’”21 Ultimately, Quinn
made the decision to discharge Shallal, citing the DSS’s findings as cause for her
termination and accusing her of gross misconduct and negligence in supervising the
adoption of the child.
Shallal thereafter brought suit claiming that these facts gave rise to a WPA claim,
but the circuit court granted summary disposition in favor of CSS because Shallal had
failed to show that she was “about to report” a violation.22 The Court of Appeals
affirmed on this basis, holding that there was no immediacy to Shallal’s threatened
reporting of Quinn given that those threats were conditioned on Quinn’s continued
21
Shallal, 455 Mich at 607-608.
22
MCL 15.362.
11
misconduct.23 This Court disagreed, concluding that Shallal had presented sufficient
evidence to create a question of fact with regard to whether she was about to report a
violation and, thus, whether she had engaged in protected activity. Because this Court
concluded that Shallal’s “express threat to the wrongdoer that she would report him if he
did not straighten up, especially coupled with her other actions, was more than ample to
conclude that reasonable minds could find that she was ‘about to report’ a suspected
violation of the law to the DSS,”24 it reversed that aspect of the lower courts’ decisions.
However, despite ruling that Shallal had engaged in protected activity, this Court
affirmed the grant of summary disposition to CSS on the alternative basis of causation.
That is, this Court determined that Shallal was unable to set forth a prima facie case
under the WPA because she “failed to establish a causal connection between her actions
and her firing.”25 To support this holding, this Court observed that many courts have
held that an employee’s bad faith will preclude recovery under a whistleblower statute. It
then cited, among others, federal case Wolcott v Champion International Corp26 for the
proposition that “[t]he primary motivation of an employee pursuing a whistleblower
claim ‘must be a desire to inform the public on matters of public concern, and not
personal vindictiveness.’”27 This Court then explained:
23
Shallal, 455 Mich at 608-609.
24
Id. at 621.
25
Id.26
Wolcott v Champion Int’l Corp, 691 F Supp 1052 (WD Mich, 1987).
27
Shallal, 455 Mich at 621, quoting Wolcott, 691 F Supp at 1065.
12
Where, however, an employee . . . keeps the matter quiet for more
than a year, eventually revealing it not to the appropriate authorities or even
to others for the purpose of preventing public injury, but rather for some
other limited and private purpose, however laudable that purpose may
appear to the employee, no such protection is afforded. [Otherwise] we
would be discouraging disclosure and correction of unlawful or improper
acts by encouraging employees to “go along” and then keep quiet reserving
comment or disclosure until a time best suited to the advancement of their
own interests.[28]
Determining that Shallal had “used her own situation to extort [CSS] not to fire
her,” this Court held that there was no causal connection between Shallal’s firing and the
protected activity when “no reasonable juror could conclude that [Shallal] threatened to
report Quinn out of an altruistic motive of protecting the public.”29 Because Quinn’s
decision to fire Shallal preceded Shallal’s threat to report him, and Shallal was aware that
she was going to be fired before threatening to report Quinn, this Court concluded that
Shallal “[could not] use the whistleblowers’ act as a shield against being fired . . . .”30
C. THE COURT OF APPEALS’ APPLICATION OF SHALLAL
In this case, despite the marked absence of any motivational element in the
language of MCL 15.362, the Court of Appeals majority held that, “as a matter of law,
plaintiff could not recover damages under the WPA” given that, in threatening to report
the Mayor’s violation of Ordinance 68C, “plaintiff clearly intended to advance his own
financial interests” and “did not pursue the matter to inform the public on a matter of
28
Shallal, 455 Mich at 621 (citation and quotation marks omitted; alteration in original).
29
Id. at 622.
30
Id.13
public concern.”31 In reaching this conclusion, the majority relied on Shallal, which the
majority interpreted as holding that, “[i]n order to effectuate the purpose of the WPA . . . ,
when considering a retaliation claim under the act, a critical inquiry is whether the
employee acted in good faith and with ‘a desire to inform the public on matters of public
concern . . . .’”32 We disagree with the Court of Appeals’ analysis because it is not
supported by the statutory text of MCL 15.362 nor does it accurately characterize this
Court’s holding in Shallal.
As previously noted, in Shallal, this Court did consider generally a
whistleblower’s primary motivation for pursuing a claim under the WPA and, relying on
federal caselaw that applied Michigan’s WPA, we concluded that Shallal was precluded
from using the WPA to insulate herself from termination “where she knew she was going
to be fired before threatening to report her supervisor.”33 Therefore, it was because
Shallal’s prior knowledge of her impending termination incited her subsequent threat to
report Quinn that this Court held that no reasonable juror could conclude that Shallal’s
threat was causally connected to her firing. There is, however, nothing in the plain
language of MCL 15.362 that supports a broader requirement that in order to establish a
viable claim under the WPA, a plaintiff must proceed under the WPA “out of an altruistic
motive of protecting the public.”34
31
Whitman, 293 Mich App at 228-229.
32
Id. at 230, quoting Shallal, 455 Mich at 621 (emphasis added; citation and quotation
marks omitted).
33
Shallal, 455 Mich at 622 (emphasis added).
34
Id.14
Defendants argue that the “altruistic motive” requirement articulated in the Court
of Appeals opinion in this case is consistent with the WPA’s underlying purpose of
providing protection to the public. Yet the Court of Appeals relied on Shallal to
judicially engraft onto MCL 15.362 the requirement that a plaintiff’s motivation for
engaging in protected activity be altruistic, i.e., to prevent injury to the public, and not
self-serving, i.e., for the plaintiff’s own personal gain. Indeed, the Court of Appeals
majority’s opinion is replete with references to Whitman’s self-serving motivations,
which, according to the Court of Appeals, rendered his WPA claim nonactionable.35
However, this Court has explained that the WPA meets its objective of protecting the
public
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.[36]
35
For example, the Court of Appeals stated that Whitman could not recover damages
under the WPA because his threat to report the Mayor was “clearly intended to advance
his own financial interests” and that “when considering a retaliation claim under the act, a
critical inquiry is whether the employee acted in good faith . . . .” Whitman, 293 Mich
App at 228-229, 230. The Court of Appeals also stated that Whitman’s claim is not
actionable under the WPA because he was decidedly “acting . . . in the thoroughly
personal and private interest of securing a monetary benefit in order to maintain his ‘life
style,’” Whitman’s “complaint amounted to a private dispute over [his] entitlement to a
monetary employment benefit,” “plaintiff acted entirely on his own behalf,” and
“nowhere in the voluminous record is there any indication that good faith or the interests
of society as a whole played any part in plaintiff’s [threatened] decision to go to the
authorities.” Id. at 230-231 (citation and quotiation marks omitted; alteration in original).
36
Dolan, 454 Mich at 378-379.
15
Therefore, as long as a plaintiff demonstrates a causal connection between the protected
activity and the adverse employment action, the plaintiff’s subjective motivation for
engaging in the protected activity in the first instance is not relevant to whether the
plaintiff may recover under the act.
In sum, and contrary to the Court of Appeals majority’s interpretation, Shallal
does not hold that an employee’s motivation is a factor in determining whether the
employee was engaged in protected activity. Indeed, it bears repeating that having a
specific primary motivation is neither a prerequisite for bringing a WPA claim nor a
factor to be considered in determining whether a plaintiff had engaged in protected
conduct. Accordingly, the statement in Shallal that “[t]he primary motivation of an
employee pursuing a whistleblower claim ‘must be a desire to inform the public on
matters of public concern, and not personal vindictiveness,’”37 and Shallal’s suggestion
that the employee must act “out of an altruistic motive of protecting the public” are
disavowed as dicta.
D. APPLICATION
In this case, it 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 Lowthian, and the
city attorney, and that following Whitman’s reporting of this violation, he was
37
Shallal, 455 Mich at 621-622, quoting Wolcott, 691 F Sup at 1065.
16
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.
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.38 At
trial, Whitman presented evidence that his reporting of the Ordinance 68C 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.
IV. CONCLUSION
We hold that the Court of Appeals majority erred in finding that as a “matter of
law, plaintiff could not recover damages under the WPA” because he “did not pursue the
matter to inform the public on a matter of public concern.”39 Our review of the WPA, in
particular MCL 15.362, reveals that nothing in the statutory language addresses an
employee’s motivation for engaging in protected conduct, nor does any language
mandate that the employee’s primary motivation for pursuing a claim under the act be a
38
See Debano-Griffin, 493 Mich 167.
39
Whitman, 293 Mich App at 228-229.
17
desire to inform the public of matters of public concern. Accordingly, the plain language
of MCL 15.362 controls, and we clarify that a plaintiff’s motivation is not relevant to the
issue whether a plaintiff has engaged in protected activity and proof of any specific
motivation is not a prerequisite to bringing a claim under the WPA. To the extent that
Shallal has been interpreted to mandate a specific motive, any language to that effect is
disavowed as dicta unrelated to the essential holding of the case regarding the causal
connection between the protected activity and the adverse employment decision.
Accordingly, we reverse the judgment of the Court of Appeals and remand this
case to the Court of Appeals for consideration of all remaining issues on which that court
did not formally rule, including whether the causation element of MCL 15.362 has been
met.40
Mary Beth Kelly
Robert P. Young, Jr.
Michael F. Cavanagh
Stephen J. Markman
Brian K. Zahra
MCCORMACK and VIVIANO, JJ., took no part in the decision of this case.
40
The Court of Appeals shall consider the causation issue in light of this Court’s recent
decision in Debano-Griffin, 493 Mich 167.
18