The Whistleblowers' Protection Act (WPA); “About to report” claim; “Report”; Causal connection; Unlawful retaliation in violation of Michigan public policy; WPA preemption; “Public body”; State Bar of Michigan (SBM)

In an order in lieu of granting leave to appeal the Court of Appeals judgment (see e-Journal # 70192 in the 4/8/19 edition for the published opinion), the court affirmed the ruling that plaintiff failed to show a genuine issue of material fact as to whether she “‘engaged in a protected activity by being about to report a violation or suspected violation of law’ to the police.” It also affirmed the ruling that she did not establish a material question of fact as to whether there was a causal connection between her “communication with defendant’s attorney and her termination.” But it vacated the holding that this communication “was not a ‘report’ under the WPA, as” it was unnecessary. It reversed the holding in Part III(D) of the Court of Appeals opinion that the WPA preempted plaintiff’s public-policy claim. The court first determined that the evidence did not establish “that plaintiff herself was ‘about to report . . . a suspected violation of a law,’ MCL 15.362, but rather that she wanted defendant to so report and was upset that it would not. There is a legally significant distinction between being ‘about to report . . . a suspected violation of a law’ and merely wanting someone else to so report;” while the former is protected activity under the WPA, the latter is not. The court found the “holding that plaintiff’s communication with defendant’s attorney was not a ‘report’ under the WPA” was unnecessary given its agreement with the Court of Appeals’ “conclusion that summary disposition was warranted based on plaintiff’s failure to establish a causal connection between [her] communication with defendant’s attorney and her termination.” As to her public policy claim, she asserted two factual bases for this claim – (1) her attempt to report an employee’s (LS) “actions to the police, and (2) her refusal to conceal and/or compound LS’s violations of the law.” Because she did not establish “a question of fact that this conduct entitles her to recover under the WPA, her public-policy claim based on this conduct is not preempted by the WPA.” The court remanded to the Court of Appeals “to address whether, viewing the evidence in the light most favorable to plaintiff, there is a genuine issue of material fact that her termination was unlawful in violation of public policy, including, if necessary, whether she can establish a causal connection between her conduct and her termination.”

Justice Zahra fully concurred in the order, but wrote separately because he continued “to believe ‘a persuasive argument can be made that the [SBM] is not a “public body” under the’” WPA and as a result, “an attorney, as a member of the SBM, would not constitute a member of a public body for purposes of the WPA.” But it was not necessary to reach this issue to resolve this case.

Justice Viviano, joined by Justice Welch, also fully concurred in the order, and wrote separately “only to highlight a curious interpretation that has been given to the [WPA] that was incidentally involved in” this case. Justice Viviano questioned whether the Legislature intended the result that an employee would gain the WPA’s protections “by reporting or being about to report a suspected violation of law to any licensed attorney in the state—even if that employee had no prior relationship with that attorney.” He believed that the court should closely consider in a future case whether a “narrower definition of ‘member’ applies to the WPA and” who falls within it. But these questions did not need to be addressed here.