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April 28, 2011
Court of
Appeals Upholds Dismissal of Whistleblower Protection Act Claim
Against School District
By Sarah Geddes
In
an unpublished opinion from the Michigan Court of Appeals, the Court
upheld the dismissal of a teacher's claim against a school district
under the Whistleblower Protection Act (WPA), MCL § 15.361 et seq.
(Gore v. Belcher and Detroit Public Schools, Michigan Court of
Appeals, March 17, 2011). The Court held that in order to be
protected under the WPA, the plaintiff must demonstrate that he or
she is engaged in a protected activity and that a causal link between
a protected activity and the adverse employment action is more than
merely "speculative" or "coincidental."
The
plaintiff brought suit against the school district claiming she was
terminated for refusing to lie during a student disciplinary hearing,
and for filing two police reports, one against a student and the
other against the superintendent.
First,
the Court of Appeals found that refusing to lie in a student
disciplinary hearing is not a "protected activity" under
the WPA, which protects only those employees who report, or who are
about to report, a violation of a law, regulation, or rule. As stated
by the Court: the WPA "does not protect a plaintiff who
refuses to lie during a hearing conducted by a public
body."
The
Court treated the plaintiff's claim as a "type 2
whistleblower" action. A "type 2 whistleblower" is an
employee who is "requested by a public body to participate in an
investigation, hearing, or inquiry held by that public body, or a
court action," and who is treated to adverse employment action
as a result of that request. MCL § 15.362. Type 2
whistleblowers are protected under the WPA even if they do not
actually report a violation.
While
the plaintiff was requested by a public body to participate in a
hearing held by the public body, the plaintiff did not allege that
she was terminated as a result of the request. Therefore, the
plaintiff's contention that she was protected as a "type 2
whistleblower" failed for lack of establishing a causal
connection between the protected activity and the adverse employment
action.
Finally,
the plaintiff alleged that she was discharged in violation of the WPA
for filing two police reports, one against a student, and one against
the superintendent. The school district defendants conceded that
filing the two police reports involved protected activity under the
WPA. However, the Court found that the plaintiff presented no
evidence that her discharge was causally connected to filing the
police reports. The Court noted various disciplinary write-ups in the
plaintiff's employment record, and described incidences of combative
behavior by the plaintiff toward school personnel. The Court also
noted that in three grievances filed by the plaintiff regarding her
discipline and termination, the plaintiff had never alleged that the
filing of a police report against the superintendent caused the
adverse employment action. In her deposition, the plaintiff had
indicated that the timing of her termination coincided with the police
report she filed against the superintendent, but the Court held that
"[a] plaintiff must show something more than a mere coincidence
in time between the protected activity and the termination." A
merely "speculative" connection between a protected act and
adverse employment action is insufficient to survive a motion to
dismiss a WPA claim.
For
more information about the WPA, contact your Clark Hill attorney.
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