By: Claudia D. Orr, Attorney, Plunkett Cooney
Whistleblower Claim Delivered To The Employee With A Bow!
Sometimes I read an opinion and I am just astonished by the decisions made by the employer and just how wrong things can go. This is a case that never should have happened and probably wouldn’t have had the employer obtained legal advice before acting. Let’s look at what happened in Apacanis v Carter and Services to Enhance Potential (STEP), a recent unpublished decision of the Michigan Court of Appeals.
STEP is a nonprofit that contracts with Detroit/Wayne County Mental Health Authority (the Authority) to provide various services to individuals who have mental health issues or other disabilities. Plaintiff Whitley Apacanis is employed by STEP and receives job-training assistance from it. Defendant Carter is employed by STEP as a liaison between outside agencies and clients, like plaintiff. Clients, like plaintiff, receive on-the-job training as they work in STEP’s workshop assembling various items. Clients also receive a small payment for their work.
One evening, plaintiff and Samuel Eiland, another STEP client, engaged in a number of sexual acts at Eiland’s home. All but one sexual act was consensual. But that is all it takes because no means no. When plaintiff objected, Eiland sexually assaulted her. Plaintiff reported the assault to the police and also to the courts via her request for a personal protective order against Eiland.
Plaintiff also reported the assault to STEP. While no assaultive behavior occurred at work, Eiland was banned from the premises and suspended as a client. Significantly, STEP also suspended plaintiff because she had reported the crime to the police and had obtained a PPO. In fact, the written suspension given to plaintiff stated: “Consumer suspended from program until completion of pending criminal investigation.” Is that a collective gasp I am hearing from readers? It took my breath away to be sure.
Plaintiff sued under the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq, and the Elliott-Larsen Civil Rights Act (ELCRA), MCL 37.2101, et seq. The case was dismissed by the lower court when it granted the defendants’ motion for summary disposition.
On appeal, the dismissal of the retaliation claim under ELCRA was upheld by the appellate court because there was no evidence that STEP took any action against plaintiff based on the exercise of any rights under ELCRA. The alleged assault did not occur on the premises and STEP took appropriate action by removing Eiland as soon as it received notice of plaintiff’s allegations.
However, the WPA claim is a problem for STEP. The WPA makes it unlawful for an employer to-
[d]ischarge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because 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.
MCL 15.362. Over the years I have found whistleblower claims to be the most dangerous claims to defend, in part because of the decisions from the appellate bench. For example, case law provides that (1) the employee’s motive to use the law as a sword, rather than a shield (i.e., trying to obtain some job security when he/she is about to be fired) is no longer relevant; (2) it doesn’t matter if the employee’s job required him/her to make the report and they were simply acting within the scope of their duties; and (3) conferring with an attorney, who is an “officer of the court”, satisfies the “public body” requirement). These are just a few of the troubling rulings for employers from Michigan’s appellate bench.
To prove her claim, plaintiff is required to show (1) she engaged in protected activity; (2) the employer took an adverse action against her; and (3) a causal connection existed between the two. Here, it is undisputed that plaintiff reported a violation of the law (the alleged rape) to a public body (the police and the court). While STEP conceded that it based its decision on plaintiff’s report (the causal connection), it argued as a defense that it had not taken an “adverse action” against the plaintiff because it reinstated her. Does any reader believe for a moment that this argument succeeded?
Defendants admitted that for “a period of several weeks plaintiff was suspended, and therefore prevented from receiving services and earning pay from STEP, and that her suspension was based solely on her decision to report Eiland and his alleged sexual assault of plaintiff to police.” This is clearly an adverse employment action. I recall one court’s opinion that held a suspension, that was thereafter paid, was an adverse employment action because of the uncertainty and stress during the period of suspension.
Defendants also argued that the suspension was “justified” because STEP had consulted with the Authority and that the state mental health code required it to treat both plaintiff and Eiland the same – either suspend both or neither. The appellate court noted that defendants failed to cite any legal authority that supported their proposition that “the victim of an alleged crime should be treated exactly the same as the alleged perpetrator”. The appellate court seems shocked and displeased by the defendants’ actions too.
The appellate court noted that “there is only one exception to [WPA’s] prohibition against taking an adverse employment action as retaliation for otherwise protected conduct: if the employee knowingly makes a false report about the alleged violation of law.” The court rejected defendants’ position, stating “[t]here is not, as defendants seem to believe, an exception granted for employers who feel they can justify conduct that otherwise violated the WPA.” Because defendant Carter signed the suspension form and was identified as the decision maker, she is also responsible for any violation of the WPA. Thus, the appellate court reversed the dismissal of the WPA claim as to both defendants and sent the claim under the WPA back to the lower court for trial.
This case just leaves me shaking my head and wondering at what point did STEP consult with an employment attorney. Perhaps not until the lawsuit was filed at which point defense counsel was stuck with the facts above. If there is one take away for the reader it should be this: always consult with an experienced employment attorney before you take action against an employee whenever you have any unusual circumstances. There may be little any attorney can do for these defendants given the actions taken and the admissions that they have made.
This article was written by Claudia D. Orr, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM) and an arbitrator with the American Arbitration Association. She can be reached at firstname.lastname@example.org or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html
Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2019.