Introduction
Instructions
M Civ JI 107.01 Whistleblowers' Protection Act: Explanation
M Civ JI 107.02 Whistleblowers' Protection Act: Protected Activity—Definition
M Civ JI 107.03 Whistleblowers' Protection Act: Causation
M Civ JI 107.04 Whistleblowers' Protection Act: Good Faith Belief
M Civ JI 107.11 Whistleblowers' Protection Act: Distinction in Standard of Proof Between "Report" and "About to Report"
M Civ JI 107.15 Whistleblowers' Protection Act: Burden of Proof
The Michigan Supreme Court has held that the approach in McDonnell Douglas Corp v Green, 411 US 792, 800; 93 S Ct 1817, 1823; 36 L Ed 2d 668, 676 (1973) is not the proper subject of an instruction to a jury. Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001). See also the discussion of the McDonnell Douglas formulation in the Introduction to Chapter 105 Employment Discrimination.
We have a state law known as the Whistleblowers’ Protection Act which provides that an employer shall not [discharge / or / threaten / or / discriminate against] an employee regarding employment, compensation, or a term, condition, location or privilege of employment because of protected activity.
M Civ JI 107.01 was added April 1, 2002. TOP
“Protected activity” means:
*a. [an employee / a person acting on behalf of an 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 the law of the state, a political subdivision of the state, or the United States) by [his or her employer / ** a third party / **a co-employee] to a public body, unless the employee knows that the report is false; (or)
*b. an employee [participates at the request of a public body / has been requested by a public body to participate] in [an investigation / or / a hearing / or / an inquiry held by that public body / or / a court action].
***(A request for the employee to participate in [an investigation / or / a hearing / or / an inquiry / or / a court action] is considered protected activity even though the employee does not actually participate in the [investigation / or / hearing / or / inquiry / or / court action]).
*The court should choose one or both of the subsections that apply to the case. The phrases in parentheses in subsection a. may be deleted if not an issue in the case.
** The court should choose the phrase that applies depending on whether the violation or suspected violation involves a third party (see Dolan v Continental Airlines/Continental Express, 454 Mich 373, 382; 563 NW2d 23 (1997), or a co-employee (see Dudewicz v Norris-Schmid, Inc, 443 Mich 68; 503 NW2d 645 (1993). For the relationship of the violation or suspected violation to the employment setting, see, e.g., Dolan.
***This paragraph should be used only if the employee does not participate in the investigation, hearing, inquiry or court action.
If plaintiff did not engage in protected activity, plaintiff may not recover even if defendant mistakenly believed that plaintiff engaged in such activity. Chandler v Dowell Schlumberger, Inc, 456 Mich 395; 572 NW2d 210 (1998).
Public body is defined in MCL 15.361(d). For cases on what constitutes a request by a public body, see Henry v City of Detroit, 234 Mich App 405; 594 NW2d 107 (1999), or a report to a public body, see Branch v Azalea/Epps Home, Ltd, 189 Mich App 211; 472 NW2d 73 (1991). For circumstances in which a report to a public body employer can constitute a report to a public body, see Phinney v Perlmutter, 222 Mich App 513; 564 NW2d 532 (1997); but see Dickson v Oakland University, 171 Mich App 68; 429 NW2d 640 (1988).
M Civ JI 107.02 was added April 1, 2002. TOP
When I use the term “because of” I mean that protected activity must be one of the motives or reasons defendant [discharged / or / threatened / or / discriminated against] the plaintiff. Protected activity does not have to be the only reason, or even the main reason, but it does have to be one of the reasons that made a difference in defendant's decision to [discharge / or / threaten / or / discriminate against] the plaintiff.
*(In order to prove causation, plaintiff must show that a decision-maker or a person who influenced the decision knew of plaintiff's protected activity. Knowledge may be shown by direct evidence or circumstantial evidence.
Note on Use
*This paragraph should be read only if knowledge is an issue in the case. See Kaufman & Payton, PC v Nikkila , 200 Mich App 250; 503 NW2d 728 (1993); Roberson v Occupational Health Centers of America, Inc , 220 Mich App 322; 559 NW2d 86 (1996); Roulston v Tendercare (Michigan) Inc , 239 Mich App 270; 608 NW2d 525 (2000); Barrett v Kirtland Community College , 245 Mich App 306; 628 NW2d 63 (2001); see also Melchi v Burns Int'l Sec Serv, Inc , 597 F Supp 575 (ED Mich 1984).
If there is an issue of improper motive in reporting or threatening to report a violation, an additional instruction may be required. See Shallal v Catholic Soc Serv of Michigan , 455 Mich 604; 566 NW2d 571 (1997); Phinney v Perlmutter , 222 Mich App 513; 564 NW2d 532 (1997); Wolcott v Champion Int'l Corp , 691 F Supp 1052 (WD Mich 1987).
Comment
On the meaning of “because of” in the employment discrimination context, see Hazle v Ford Motor Co, 464 Mich 456; 628 NW2d 515 (2001), and other cases cited in the comment to M Civ JI 105.02 Employment Discrimination (Disparate Treatment)—Definition.
History
M Civ JI 107.03 was added April 1, 2002, amended April 1, 2004. TOP
Plaintiff must reasonably believe that a violation of law or a regulation has occurred. It is not necessary that an actual violation of law or a regulation has occurred, but the employee can not have a reasonable belief if [he / she] knows [his / her] report is false.
MCL 15.362; Melchi v Burns Int’l Sec Serv, Inc, 597 F Supp 575 (ED Mich 1984); Clark County Sch Dist v Breeden, 532 US 268; 121 S Ct 1508; 149 L Ed 2d 509 (2001).
M Civ JI 107.04 was added April 1, 2002. TOP
If the plaintiff claims that he or she reported a violation or suspected violation of law or regulation to a public body, the plaintiff must prove by a preponderance of the evidence that [he / she] made such a report.
If the plaintiff claims that he or she was about to report a violation or suspected violation of law or regulation to a public body, the plaintiff must prove by clear and convincing evidence that he or she was about to report such a violation.
This instruction should be followed by the definitions of preponderance and clear and convincing evidence in M Civ JI 8.01.
This instruction must be given whenever “about to report” is an issue in the case.
The clear and convincing requirement for an employee “about to report” a violation or suspected violation is found in MCL 15.363(4).
M Civ JI 107.11 was added April 1, 2002. TOP
Plaintiff has the burden of proving each of the following elements:
a. there was protected activity as defined in these instructions; and
b. the defendant [discharged / or / threatened / or / discriminated against] the plaintiff; and
c. the [discharge / threat / discrimination] was because of protected activity; and
d. the plaintiff suffered damages as a result of the [discharge/threat/discrimination].
Your verdict will be for the plaintiff if you find that plaintiff has proved each of these elements. Your verdict will be for the defendant if you find that the plaintiff has failed to prove any one of these elements.
M Civ JI 107.15 was added April 1, 2002.
Amended December 8, 2003. TOP