Court of Appeals majority overturns Whistleblower jury verdict, even after prior remand by Supreme Court
Judge Henry Saad and Judge Peter O'Connell attempted to make some new law in rejecting Bruce Whitman's Whistleblower Protection Act [WPA] claim. Whitman was the City of Burton's highest law enforcement officer when the city administration adopted a policy of refusing to pay accumulated, unused sick leave. Whitman pointed out that this policy violated a City Ordinance and was illegal; he was promptly fired for not going along. He filed a WPA lawsuit and secured a jury verdict in his favor. The City appealed and Saad and O'Connell voted to wipe out his judgment. Their decision was appealed to the Michigan Supreme Court, which issued a rare decision in an employee's favor. THe high court rejected their analysis and holding that since Whitman's motivation was "selfish" (i.e., he wanted to preserve his own earned sick-pay), he should not be entitled to the protection of the WPA.
With the Supreme Court's rejection of this analysis, deeming a private motivation "irrelevant" to the statutory protection, the two judges came up with a new theory that even the defendant city had not raised: they ruled that his "whistleblowing" harmed, rather than advancing the public interest and should deny him the statutory protection from retaliation. They deemed his WPA claim "specious" and again overturned the jury verdict. They also decided that he was fired because he was "untrustworthy," and not because he fought to uphold the law regarding accumulated sick pay.Judge Beckering wrote an 11 page dissent in which she pointed out that there was no legal support for the majority's holding. She noted that it violated the prior Supreme Court ruling, which was now "the law of the case;" the new majority opinion was a product of individual political assumptions and contrary to the specific language of the statute.
Beckerering pointed out that the public has an interest in following the law and that the WPA makes it illegal to retaliate against someone who speaks out against breaking the law. The dissent also noted that under the law, the jurors were the arbiters of fact and that appellate judges are not allowed to reinterpret facts that the jury has already decided, in terms of the basis for the Plaintiff's discharge: if they decided Whitman was fired for objecting to violation of the law regarding sick pay, appellate judges exceeded their authority when they overturn that decision and hold that the firing was motivated by "lack of trust."