SAAD, J.
In this action under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq., a jury returned a verdict in favor of plaintiff. For the reasons set forth below, we reverse the trial court's denial of defendants' motion for judgment notwithstanding the verdict (JNOV) and remand for further proceedings consistent with this opinion.
Plaintiff sued defendants under the WPA after defendant city of Burton Mayor Charles Smiley declined to reappoint plaintiff as the police chief for the city of Burton in November 2007. Plaintiff's complaint alleged that defendants terminated his employment because, in January 2004, plaintiff complained to the mayor and a city attorney that it would be a violation of Burton City Ordinance 68-25C (Ordinance 68-C) if defendants failed to pay plaintiff for unused sick and personal leave time plaintiff accumulated in 2003. Ordinance 68-C, § 8(I) provides, in relevant part:
Defendants maintain that, when faced with significant budget problems in the city, plaintiff, along with other city administrators, agreed in March 2003 to forego any payout for accumulated sick and personal time and to instead use their sick or personal time throughout the year. Plaintiff did not use much of his sick and personal time in 2003 and, after he demanded payment under the ordinance in early 2004 and threatened to pursue criminal charges against the mayor, defendants paid plaintiff $6,984 for his unused time. Defendants deny that Mayor Smiley decided to appoint another police chief in 2007 because of plaintiff's complaint involving Ordinance 68-C. Rather, defendants contend that the mayor was dissatisfied with many aspects of plaintiff's performance as chief of police. Following a four-day trial, the jury returned a verdict in favor of plaintiff and, thereafter, the trial court denied defendants' motion for JNOV or a new trial.
As discussed, plaintiff claims that defendants violated the WPA by terminating his employment three years after he threatened to pursue criminal charges if the city did not pay for his 2003 unused sick and vacation time. Plaintiff took the position at trial that his complaint about the Ordinance 68-C violation was a factor in the mayor's decision not to reappoint him as chief of police in 2007.
Defendants argue that the trial court should have granted their motion for JNOV because plaintiff did not establish a prima facie case under the WPA. "We review de novo a trial court's decision regarding a motion for JNOV." Campbell v. Dep't of Human Servs., 286 Mich.App. 230, 241, 780 N.W.2d 586 (2009). "When reviewing the denial of a motion for JNOV, the appellate court views the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine if a party was entitled to judgment as a matter of law." Genna v. Jackson, 286 Mich.App. 413, 417, 781 N.W.2d 124 (2009).
By 2003, due in part to changes in revenue sharing, the general fund for the city of Burton had lost approximately $50,000. Mayor Smiley testified that, in light of this significant budget shortfall, and to protect the jobs of city employees, he proposed that he and other city administrators agree to a wage freeze as well as a "use it or lose it" policy for sick and personal days, so that each administrator, including plaintiff, would not take a monetary payout for their unused time. At a meeting attended by plaintiff, but not the mayor, the administrators agreed to the mayor's proposal. Thereafter, the mayor announced the agreement in his state-of-the-city address, to the city council, and to the press.
Plaintiff maintained at trial that he did not agree to forfeit a payout for his sick and vacation hours. Shortly after the "agreement" was reached in March 2003, plaintiff sent a letter to the mayor complaining that it was an unfair elimination of one of his benefits. Plaintiff wrote:
Notwithstanding his dislike for the policy, plaintiff did not state in the letter that he would demand payment for his unused time and he did not state that the agreement to forego the annual payout would violate any Burton ordinance.
Nonetheless, and despite his apparent understanding of the agreement, plaintiff did not use many of his sick or vacation days during the remainder of 2003 and, on January 9, 2004, plaintiff sent a letter to Mayor Smiley demanding payment:
Plaintiff also sent a letter to city attorney Richard Hamilton on January 23, 2004, as a follow-up to a conversation they had earlier in the month. Plaintiff's letter provided, in relevant part:
The city attorney advised Mayor Smiley that a failure to pay plaintiff would be contrary to Ordinance 68-C, and, shortly thereafter, plaintiff received a check for his unused sick and vacation hours.
Mayor Smiley testified that he was upset about plaintiff's demand for payment as he viewed this as plaintiff "going back on his word" because all the administrators had agreed to forego the payments, plaintiff did not abide by the agreement, and the mayor had already issued a press release about the agreement. Some other administrators were also angry with plaintiff because they had used their sick and vacation time during the year with the understanding that they would not receive any payment for it and they believed plaintiff "sandbagged" the city by making his claim only after the right to these payments ripened. Nonetheless, Mayor Smiley testified that he and plaintiff overcame their differences about the issue and he denied that this factored into his decision not to reappoint plaintiff in 2007. Rather, Mayor Smiley testified that there were numerous problems with plaintiff's performance as police chief over the next three years. In addition to various complaints from police officers about plaintiff and the low morale in the department, Mayor Smiley cited plaintiff's inadequate discipline of three officers who had followed the mayor's car in an unsuccessful attempt to arrest the mayor for a driving offense after he visited a local pub, a lack of communication from plaintiff about the police department's operations and activities, numerous sexually explicit e-mails plaintiff sent on his city computer in clear violation of city policy, plaintiff's failure to inform the mayor about the failure to discipline an intoxicated, off-duty police officer who shot someone in the chest with a Simunition non-lethal training gun, plaintiff's involvement in denying employment to a qualified police department applicant, his retention of an officer who was deemed
Mayor Smiley informed plaintiff that he did not intend to reappoint him as police chief on November 27, 2007. Plaintiff took the position at trial that his complaint about the Ordinance 68-C violation was causally connected to the mayor's decision because the mayor raised it as an example of his problems with plaintiff both before and after plaintiff's termination. Plaintiff specifically alleged that, by failing to reappoint him as the chief of police, defendants violated § 2 of the WPA, MCL 15.362, which states:
"To establish a prima facie case under [the WPA], a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action." West v. Gen. Motors Corp., 469 Mich. 177, 183-184, 665 N.W.2d 468 (2003).
We hold that, as a matter of law, plaintiff could not recover damages under the WPA for the mayor's decision not to reappoint him because, in threatening to inform the city council or prosecute the mayor for a violation of Ordinance 68-C, plaintiff clearly intended to advance his own financial interests. He did not pursue the matter to inform the public on a matter of public concern.
"[T]he purpose of the WPA is to protect the public." Henry v. Detroit, 234 Mich.App. 405, 413 n. 1, 594 N.W.2d 107 (1999). As our Supreme Court explained in Dolan v. Continental Airlines/Continental Express, 454 Mich. 373, 378-379, 563 N.W.2d 23 (1997):
Accordingly, by enacting the statute, the Legislature sought "to alleviate `the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses.'" Shallal v. Catholic Social Services of Wayne Co., 455 Mich. 604, 612, 566 N.W.2d 571 (1997), quoting Dudewicz, 443 Mich. at 75, 503 N.W.2d 645. To encourage employees to expose corruption or criminal conduct, the WPA "prohibits future employer reprisals" when an employee reports or is about to report such conduct. Shallal, 455 Mich. at 612, 566 N.W.2d 571.
In order to effectuate the purpose of the WPA, our courts have ruled that, when considering a retaliation claim under the act, a critical inquiry is whether the employee acted in good faith and with "`a desire to inform the public on matters of public concern....'" Id. at 621, 566 N.W.2d 571, quoting Wolcott v. Champion Int'l Corp., 691 F.Supp. 1052, 1065 (W.D.Mich., 1987). To that end, it is well-settled that the Legislature did not intend "`the Whistleblowers Act to be used as an offensive weapon by disgruntled employees.'" Shallal, 455 Mich. at 622, 566 N.W.2d 571, quoting Wolcott, 691 F.Supp. at 1066.
The mayor of Burton agreed with his administrators to forego cash payouts to save money and to demonstrate to the public that the administration was taking fiscally responsible action to save public funds while retaining needed city services. There is no dispute that the decision and subsequent agreement by the administrators to avoid thousands of dollars in cash payouts was a strategy to counteract a severe budgetary shortfall that, without some corrective measure, would likely have resulted in the termination of other public-service employees. Thus, it was in the public interest for plaintiff and the other administrators to forego this administrative perk, in order to preserve essential public services.
In demanding payment under the ordinance for his sick and personal hours—a payment the cash-strapped city could ill-afford—plaintiff was decidedly not acting in the public interest, but in the thoroughly personal and private interest of securing a monetary benefit in order to maintain his "life style." Plaintiff's claim is not actionable under the WPA because his complaint amounted to a private dispute over plaintiff's entitlement to a monetary employment benefit. Moreover, plaintiff acted entirely on his own behalf. Indeed, nowhere in the voluminous record "is there any indication that good faith or the interests of society as a whole played any part in plaintiff's [threatened] decision to go to the authorities." Wolcott, 691 F.Supp. at 1063. To the contrary, plaintiff asserted his own entitlement to payment and he dropped his threat of legal action when he received his money. Under these facts, no reasonable juror could conclude that plaintiff threatened to prosecute defendants "out of an altruistic motive of protecting the public." Shallal, 455 Mich. at 622, 566 N.W.2d 571.
Moreover, an employee also may not recover under the WPA when the employee acts in bad faith. Id. at 621, 566 N.W.2d 571. Here, as noted earlier in this opinion, plaintiff withheld his accusation of a legal violation until after he accumulated thousands of dollars worth of sick and vacation time. Once the mayor reported the agreement to the city council and the public, plaintiff spent the next several months stockpiling his hours and, when most personally advantageous, threatened legal action if defendants did not pay plaintiff for them. While this case differs factually from Shallal because the plaintiff in
Because no juror could legally find in favor of plaintiff on his claim under the WPA, we reverse the trial court's denial of defendants' motion for JNOV, and remand for further proceedings consistent with this opinion.
O'CONNELL, P.J., concurred with SAAD, J.
BECKERING, J. (dissenting).
I respectfully dissent. Defendants, city of Burton (the city) and Charles Smiley, appeal as of right the judgment entered in favor of plaintiff, Bruce Whitman, following a jury trial in this action brought under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. I would affirm.
In March 2002, Smiley, the mayor of the city, appointed plaintiff as police chief. The city charter provides, at § 6.2(b), that mayoral appointees "serve at the pleasure of the Mayor for indefinite terms, except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election...." Plaintiff remained police chief until November 2007, when, after an election, Smiley declined to reappoint plaintiff to the position.
According to plaintiff, Smiley's decision not to reappoint him was causally connected to previous incidents when plaintiff reported a policy issued by Smiley as a violation of a city ordinance. Burton City Ordinance No. 68-25C, § 8(I) (Ordinance 68C), which permitted unelected city officers to be paid for unused sick, personal, and vacation days, stated, in part:
In early 2003, an election year, Smiley held a meeting with the city department heads regarding the city's worsening financial situation. Smiley, stating that all possible measures should be taken to keep city employees working, noted that the city paid a large amount of money each year for employees' unused vacation days. At a later meeting, which Smiley did not attend, the department heads agreed to a pay
On March 20, 2003, plaintiff sent Smiley a letter objecting to the plan in Smiley's memorandum. He stated that his lifestyle revolved around "these very things that have been negotiated for me.... My family looks forward to the financial benefits I receive by not missing time from work."
In the 2003 election, Smiley was reelected, and he subsequently reappointed plaintiff as police chief. On January 9, 2004, plaintiff sent a letter to Smiley requesting a payout for his unused days in 2003 under Ordinance 68C. The letter further stated:
On January 12, 2004, Smiley held a staff meeting. Smiley stated, according to plaintiff, that there would be no payouts for unused vacation days, arguing that the administrators had waived their right to receive such payouts. Plaintiff told Smiley that he had talked to a city attorney about this issue, that refusing to pay employees for unused days was an ordinance violation, and that he expected the violation to be addressed.
On January 15, 2004, plaintiff wrote a letter to Dennis Lowthian, an administrative officer for the city who had been acting as a spokesperson for all the administrative officers. In the letter, plaintiff stated: "I cannot allow them to violate the ordinance by `forcing waivers' of ordinance[-]given rights. I believe it is my job as a police officer to point the violation out and I will pursue it as far as it needs to go." (Emphasis added.) On January 23, 2004, plaintiff wrote a letter to Richard Hamilton, a city attorney for matters other than labor and employment. Plaintiff, asserting that the failure of the city to pay him for unused vacation days was a violation of ordinance 68C, stated:
Plaintiff also stated that "[t]his ordinance was not re addressed in regards to these benefits during the past year and the Mayor and council clearly had ample time to bring this up and I expected them to [do so] after the memo of March 03." Defense counsel admitted at trial that Smiley was told about the January 23, 2004, letter, and Hamilton testified that he told Smiley about the letter. But Smiley denied that Hamilton talked with him about it.
Thereafter, the city's labor and employment attorney, Dennis Dubay, advised the city that the payouts for unused days had to be made because Ordinance 68C had not been amended to reflect the "gentlemen's agreement" not to make the payouts. According to Smiley's testimony, Dubay told him, "Chuck, you can't make a gentlemen's agreement to drive 55 [miles per hour] when the speed limit is posted at 45...."
Smiley testified that on March 28, 2004, he had a couple of alcoholic drinks at a local bar. The owner of the bar, Bob Lindsey, offered to drive Smiley home. Lindsey drove Smiley in Smiley's city-issued vehicle. Right after they left the parking lot, city police officers in three cruisers stopped them. One of the officers was slated to be laid off. Plaintiff conducted an investigation of the incident and disciplined the officers in May 2004. But Smiley allegedly felt that the discipline was too mild and was unhappy with the way plaintiff handled the matter.
On June 7, 2004, Smiley issued a letter to plaintiff, indicating that he was considering removing plaintiff as police chief. Later that day, Smiley met with plaintiff and city employee Mark Udell. According to plaintiff, Smiley angrily pointed his finger in plaintiff's face and yelled, "You threatened to have me prosecuted over the 68C vacation pay issue." Udell took notes, which stated: "Mayor—no trust—68-C (vacation)—lack of communication...."
Plaintiff asserts that his performance as police chief was good. Morale was high, he received awards, and there were no disciplinary actions against him. In April 2004 he received an award as police administrator of the year, a statewide award. Plaintiff again received a statewide award in October 2004. Plaintiff did, however, admit to exchanging sexually explicit emails during work hours.
Smiley was reelected as mayor in November 2007. Following his reelection, Smiley directed each department head, including plaintiff, to submit a resume to him, if he or she wanted to be reappointed. Later that month, Smiley declined to reappoint plaintiff as police chief. Smiley publicly stated that he wanted the police department to go in a new direction and to have more discipline in the department. But Smiley testified that the actual reasons he did not reappoint plaintiff were unnecessary for the public to know and that he was trying to protect plaintiff and the police department from embarrassment. On December 1, 2007, plaintiff began receiving pension benefits.
Later in December 2007, Smiley met with lieutenants and sergeants in the police department to discuss a possible replacement for plaintiff. At the meeting, Smiley mentioned that he and plaintiff "got off on the wrong foot" because of the Ordinance 68C issue. Sergeant Michael Odette testified that Smiley brought up the issue. Similarly, according to Lieutenant Thomas Osterholzer's testimony, Smiley acknowledged that plaintiff's conduct related to the ordinance got them off to "a rocky start" and "on the wrong foot."
Plaintiff filed suit against defendants in February 2008, alleging a violation of the WPA. At trial, the jury found in plaintiff's favor, answering special interrogatories on the verdict form, finding that plaintiff engaged in protected conduct and that his protected conduct made a difference in Smiley's failure to reappoint plaintiff. The jury found plaintiff's past economic damages to be $97,500 for 2007 and 2008, future economic damages of $130,000 ($65,000 for each of the years 2009 and 2010), and noneconomic damages of $5,000, for a grand total of $232,500. The verdict form did not provide separate awards against each of the two defendants.
The trial court subsequently entered judgment for plaintiff.
Defendants now appeal as of right.
Defendants first argue on appeal that the trial court erred by denying their motion for JNOV. A trial court's ruling on a motion for JNOV is reviewed de novo on appeal. Garg v. Macomb Co. Community Mental Health Servs., 472 Mich. 263, 272, 696 N.W.2d 646 (2005). When ruling on a motion for JNOV, a trial court should consider the evidence and all legitimate inferences arising therefrom in the light most favorable to the nonmoving party. Reed v. Yackell, 473 Mich. 520, 528, 703 N.W.2d 1 (2005) (opinion by TAYLOR, C.J.). "A trial court should grant a motion for JNOV only when there was insufficient evidence presented to create an issue for the jury." Attard v. Citizens Ins. Co. of America, 237 Mich.App. 311, 321, 602 N.W.2d 633 (1999). If the evidence is such that reasonable jurors could disagree, JNOV is not properly granted. Foreman v. Foreman, 266 Mich.App. 132, 136, 701 N.W.2d 167 (2005).
The WPA, which imposes a duty on employers not to fire whistleblowers for reporting a violation of law, states, in part:
As noted by the majority, "[t]o establish a prima facie case under this statute, a plaintiff must show that (1) the plaintiff was engaged in protected activity as defined by the act [i.e., reporting or being about to report a violation or suspected violation of law], (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the discharge or adverse employment action." West v. Gen. Motors Corp., 469 Mich. 177, 183-184, 665 N.W.2d 468 (2003).
Defendants assert that plaintiff failed to establish that he engaged in a protected activity. I disagree.
Plaintiff engaged in a protected activity, as defined by the WPA, by reporting the violation, or what was at least suspected to be a violation, of Ordinance 68C to the city. Smiley's March 18, 2003, memorandum stated that there would be no payouts for officers' unused vacation days, effective immediately. Smiley's policy to discontinue payouts was contrary to Ordinance 68C, which permitted unelected city officers to be paid for unused sick, personal, and vacation days. Plaintiff believed that Smiley was committing an ordinance violation, and he reported it as such to Smiley himself, city administrative officer Lowthian, and city attorney Hamilton.
Defendants next assert that plaintiff failed to establish a causal connection between his protected activity and his subsequent discharge. Again, I disagree. I would hold that plaintiff presented sufficient evidence of causation to create an issue for the jury.
The model civil jury instruction regarding causation in WPA claims states that the protected activity need not be the only reason, or even the main reason, for the employee's discharge, but it does have to be one of the reasons that made a difference in the decision to discharge. M. Civ. JI 107.03. Thus, to establish a prima facie claim under the WPA, plaintiff was required to show that one of the reasons that made a difference in Smiley's decision not to reappoint him was the fact that plaintiff had reported the violation of Ordinance 68C.
Viewing the evidence presented at trial in the light most favorable to plaintiff, there was sufficient evidence for a reasonable juror to conclude that plaintiff's reporting of the ordinance violation made a difference in Smiley's decision not to reappoint him. First, there was evidence that Smiley was aware that plaintiff reported the ordinance violation. In his January 9, 2004, letter to Smiley, plaintiff stated: "I do not feel that issuing a confidential memo that affects ones [sic] wages and benefits that are set by ordinance, can supersede that very ordinance. To ignore issues specified in that ordinance would be a direct overt violation of that ordinance and I fully intend to address the violation should it occur." At the January 12, 2004, staff meeting, plaintiff told Smiley that he had talked to a city attorney about the payout issue, that refusing to pay employees for unused days was an ordinance violation, and that he expected the violation to be addressed. There was also testimony that Smiley was aware of plaintiff's January 23, 2004, letter to Hamilton, wherein plaintiff reported the violation. Although Smiley testified that he did not discuss the letter with Hamilton, Hamilton testified that he did, in fact, tell Smiley about the letter. It is the fact-finder's responsibility to determine the credibility and weight of the testimony. Wiley v. Henry Ford Cottage Hosp., 257 Mich.App. 488, 491, 668 N.W.2d 402 (2003).
Further, although there was evidence that there may have been a variety of reasons for Smiley's decision not to reappoint plaintiff, such as plaintiff's allegedly inadequate discipline of the officers who stopped Smiley after his visit to the local
The majority concludes that plaintiff cannot recover under the WPA because he "intended to advance his own financial interests... not [to] pursue the matter to inform the public on a matter of public concern." I would hold, however, that while plaintiff's personal financial status was a concern for him in reporting the violation of Ordinance 68C, there was evidence that he acted in the public interest. This case is factually distinguishable from the cases relied on by defendants and the majority, i.e., Wolcott, Shallal, and Robinson, in which the plaintiffs refrained from "blowing the whistle" until it was most advantageous to themselves, using the WPA as a tool of extortion.
In Robinson, the United States District Court for the Eastern District of Michigan summarized the facts and holdings in Wolcott and Shallal, stating:
The Robinson Court held that the plaintiff in that case, like the plaintiffs in Wolcott and Shallal, "was aware of the alleged violations for a considerable period of time, yet only threatened to report such violations to a public body when it was apparent that his job performance was being questioned." Id. at 634. The court continued:
Unlike the plaintiffs in the above cases, plaintiff did not use the WPA as an offensive weapon or tool for extortion. The majority concludes that plaintiff acted in bad faith, in a manner similar to the plaintiff in Shallal, by withholding "his accusation of a legal violation until after he accumulated thousands of dollars worth of sick and vacation time." I disagree. Plaintiff first informed Smiley of his disagreement
Moreover, contrary to the majority's conclusion that "plaintiff was decidedly not acting in the public interest, but in the thoroughly personal and private interest of securing a monetary benefit," there was evidence that he acted, at least in part, in the public interest. Plaintiff, the city's police chief, stated in his January 9, 2004, letter to Smiley that ignoring the content of Ordinance 68C "would be a direct overt violation of that ordinance and I fully intend to address the violation should it occur." He reiterated the same at the January 12, 2004, staff meeting. In his January 15, 2004, letter to Lowthian, plaintiff stated: "I cannot allow them to violate the ordinance by `forcing waivers' of ordinance[-]given rights. I believe it is my job as a police officer to point the violation out and I will pursue it as far as it needs to go." (Emphasis added.) In his January 23, 2004, letter to Hamilton, plaintiff stated:
Given this evidence, plaintiff clearly intended to treat Smiley's payout policy as an ordinance violation and believed that it was his duty as an officer of the law to do so. The majority suggests that Smiley and his administration were acting in the public interest by withholding payouts, thereby counteracting a severe budgetary shortfall, and that plaintiff acted in opposition to that interest by requesting a payout under the ordinance. While I agree that it may be necessary for a city to adjust its budget to preserve essential public services and avoid terminating its employees, balancing the budget through violating one
In Trepanier v. Nat'l Amusements, Inc., 250 Mich.App. 578, 580-581, 649 N.W.2d 754 (2002), the plaintiff requested a personal protection order (PPO) against one of his coworkers because of the coworker's harassment of him outside of work. After he was discharged, the plaintiff filed suit against the defendant employer, asserting that the defendant violated the WPA by discharging him, in part, because he sought a PPO against his coworker. Id. at 581-582, 649 N.W.2d 754. The trial court denied the defendant summary disposition of the plaintiff's WPA claim. Id. at 582, 649 N.W.2d 754. This Court affirmed, holding that the facts of the case were "clearly distinguishable" from those in Shallal. The Court stated, in part:
Similarly, in this case, although plaintiff had personal reasons for desiring Ordinance 68C to be enforced, i.e., his own financial status, a reasonable juror could have concluded that he also acted as an officer of the law attempting to have the ordinance enforced as written, which was in the public interest.
Because there was sufficient evidence to conclude that plaintiff engaged in a protected activity and that there was a causal connection between his protected activity and subsequent discharge, I would affirm the trial court's denial of defendants' motion for JNOV.
I will briefly address the two remaining issues raised by defendants on appeal.
Defendants argue that the trial court abused its discretion by denying their motion
Rulings on motions for a new trial are reviewed for an abuse of discretion. McManamon v. Redford Charter Twp., 273 Mich.App. 131, 138, 730 N.W.2d 757 (2006). "`The determination whether a jury instruction is applicable and accurately states the law is within the discretion of the trial court.'" Bordeaux v. Celotex Corp., 203 Mich.App. 158, 168-169, 511 N.W.2d 899 (1993) (citations omitted).
Jury instructions are examined as a whole. Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000). Instructions "should not omit material issues, defenses, or theories if the evidence supports them." Id. If an instruction is applicable to the case, accurately states the law, and was requested, the trial court must give it. MCR 2.516(D)(2); Lewis v. LeGrow, 258 Mich.App. 175, 211, 670 N.W.2d 675 (2003).
The special jury instruction drafted by defense counsel and requested by defendants in this case stated:
The instruction also cited Wolcott and Shallal.
The use note for the model civil jury instruction relating to the causation element of a WPA claim state that "[i]f there is an issue of improper motive in reporting or threatening to report a violation, an additional instruction may be required." M. Civ. JI 107.03 (emphasis added). The use of the word "may" indicates discretionary action. See In re Humphrey Estate, 141 Mich.App. 412, 422-423, 367 N.W.2d 873 (1985).
The special jury instruction requested by defendants did not apply to the facts of this case, nor did it find adequate support in Wolcott and Shallal. While the instruction's language was similar to the language in Wolcott and Shallal, the context of those cases was different. As explained above, there was no evidence of extortion, personal vindictiveness, or bad faith in this case, as there was in Wolcott and Shallal. Plaintiff did not use a threat of reporting the ordinance violation as an attempt to force Smiley to reappoint him. Rather, plaintiff acted to uphold the law. While plaintiff was also motivated by his personal desire to be paid under Ordinance 68C, such a motive must not be considered improper, unless, as in Shallal, there truly is evidence of extortion, vindictiveness, or bad faith. It would be illogical to label a plaintiff's desire to be paid benefits to which he or she is legally entitled an improper motive.
Because no reasonable juror could have concluded that plaintiff had an improper motive for "blowing the whistle," the special instruction requested by defendants was inapplicable, and the trial court did not abuse its discretion by denying their motion for a new trial.
Defendants also argue that the trial court erred by concluding that Smiley is not entitled to a setoff for the pension benefits paid to plaintiff by the city. I would disagree.
Defendants cite MCL 600.6303, which is inapplicable here because this is not a personal-injury action. Furthermore, I note that all the cases relied on by defendants are breach-of-contract cases. As such, the cases are inapposite. It is undisputed that plaintiff did not have an employment contract. Rather, a whistleblower claim is analogous to claims under antiretaliation provisions of other employment-discrimination statutes, such as statutes protecting handicapped persons from discrimination. Silberstein v. Pro-Golf of America, Inc., 278 Mich.App. 446, 453, 750 N.W.2d 615 (2008).
Plaintiff relies on Hamlin v. Flint Charter Twp., 165 F.3d 426 (C.A.6, 1999), and I find Hamlin persuasive. In Hamlin, a handicapped-person discrimination case, the United States Court of Appeals for the Sixth Circuit held that, in general, pension payments from a collateral source should not be deducted from the damage award. Id. at 433-435. Because the victim, rather than the perpetrator, of discrimination should profit, payments from a collateral source should not be deducted from the award. Id. at 433-434. The court reasoned that "[a]pplying the collateral source rule in the employment discrimination context prevents the discriminatory employer from avoiding liability and experiencing a windfall, and also promotes the deterrence functions of discrimination statutes." Id. at 434.
Plaintiff argues that this Court should reverse the trial court's decision that the city is entitled to a setoff. But because plaintiff did not cross-appeal, such relief cannot be granted. See Barnell v. Taubman Co., Inc., 203 Mich.App. 110, 123, 512 N.W.2d 13 (1993).
I would affirm the trial court's order awarding judgment to plaintiff.
