Henry v. City of Detroit
594 NW2d 107, 234 Mich. App. 405 (1999)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An employee who gives deposition testimony in a civil lawsuit is engaged in a protected activity under the Michigan Whistleblower's Protection Act (WPA) because participation in a court action, which can be compelled by the judiciary, qualifies as being 'requested by a public body to participate in... a court action.'
Facts:
- Plaintiff, a commander in the Detroit Police Department, was the chairman of a departmental board of review tasked with overseeing the investigation into the death of Malice Green.
- Detroit Police Chief Isaiah McKinnon issued orders that prevented the board of review from carrying out its duties as defined by departmental rules.
- As a result, some officers innocent of wrongdoing in the Green case were falsely accused by the department.
- Robert Lessnau, one of the acquitted officers, filed a civil lawsuit against the department.
- In a deposition for the Lessnau lawsuit, Plaintiff testified that the police department had violated its own rules concerning the board of review.
- In an unrelated matter, Plaintiff also testified before the Michigan Employment Relations Commission (MERC) regarding a police union.
- Less than four months after his deposition in the Lessnau suit, and less than one month after his MERC testimony, Plaintiff was forced to choose between taking an early retirement or accepting a demotion.
- Defendants claimed the adverse action was due to poor job performance, citing surveillance showing Plaintiff was out of his precinct during work hours.
Procedural Posture:
- Plaintiff sued the City of Detroit and Police Chief McKinnon in a state trial court, alleging a violation of the Whistleblower’s Protection Act (WPA) among other claims.
- The trial court dismissed most counts, allowing the WPA claim to proceed to trial.
- A jury returned a verdict for the Plaintiff, awarding him damages totaling $1.08 million.
- Defendants filed a motion for remittitur, asking the trial court to reduce the jury's damage award, which the court denied.
- Defendants, as appellants, appealed the jury verdict and the denial of their motion to the Michigan Court of Appeals, an intermediate appellate court.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an employee's deposition testimony in a fellow officer's civil lawsuit constitute a 'protected activity' under Michigan's Whistleblower's Protection Act (WPA)?
Opinions:
Majority - Per Curiam
Yes, an employee's deposition testimony in a civil lawsuit constitutes a protected activity under the WPA. The court distinguished between two types of whistleblowers: Type 1, who initiate a report of wrongdoing to a public body, and Type 2, who are 'requested by a public body to participate in... a court action.' While Plaintiff's deposition was not a self-initiated report (making him not a Type 1 whistleblower), he qualifies as a Type 2 whistleblower. His deposition constituted participation in a 'court action.' The requirement of being 'requested by a public body' is satisfied because deposition testimony is governed by court rules and can be compelled by a subpoena, which is a court-ordered command. The judiciary is defined as a 'public body' under the WPA. Therefore, by participating in a deposition where his attendance could be compelled by the court, Plaintiff was engaged in a protected activity.
Analysis:
This decision significantly broadens the scope of protected activities under Michigan's Whistleblower's Protection Act. It establishes that an employee does not need to proactively report wrongdoing to an external agency to be protected; merely participating as a witness in a civil lawsuit can suffice. By interpreting a court-compelled deposition as a 'request by a public body,' the ruling extends whistleblower protection to individuals involved in internal legal disputes, potentially increasing employers' liability for retaliation against employee-witnesses. This liberal construction of the statute lowers the threshold for an employee to establish a prima facie case, shifting the focus in such cases more heavily onto the employer's stated reason for the adverse employment action.
