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Attorney: Effect of Mich. whistleblower decision to be seen

By Karen Kidd | Mar 21, 2016

From Morguefile | None

LANSING, Mich. (Legal Newsline) – It remains to be seen how broad an impact, if any, a recent Michigan Supreme Court decision will have on certain Whistleblowers' Protection Act cases, a Detroit attorney says.

The plaintiff claimed she was fired for reporting activity that hadn't happened yet - specifically, that a co-worker was planning to misuse grant money.

"It’s difficult to determine what type of impact the decision will have," said James D. VandeWyngearde, an attorney with Pepper Hamilton in Detroit.

"The Court made expressly clear that while the act does provide protection for an employee who is about to report a violation or suspected violation of law, the Act does not provide protection for the reporting of a future violation of law."

The case, Pace vs Edel-Harrelson, began in January of 2012 when the plaintiff, Barbara Pace, was fired from her job at SIREN/Eaton Shelter, a domestic violence and homeless advocacy organization in Charlotte, Mich.

The previous summer, Pace became concerned about grant money being used for unauthorized purchases, concerns she discussed those concerns with SIREN's Executive Director, and co-defendant in the case, Jessica Edel-Harrelson.

In December 2012, Pace claimed a co-worker and another later defendant in the case, Christy Long, told her she intended to use leftover grant money to purchase a stove for her daughter.

Pace testified that she felt Long was implying she should cover up Long's purchase. For her part, Long denied ever having this conversation with Pace or ever making such a purchase.

After her alleged conversation with Long, Pace said she brought the matter to the attention of Nancy Oliver, Edel-Harrelson’s predecessor SIREN director of SIREN, and her supervisors, according to court documents.

Shortly after, Pace said she was subjected harassment, including “snide comments” and “eye-piercing dirty looks”, and that Long was rude to her. On Jan. 18, 2012, after 10 years with SIREN, Pace was informed by Edel-Harrelson that she was fired, effective the following Jan. 21.

The letter from Edel-Harrelson, dated the following day, cited Pace's own allegedly harassing and intimidating behavior toward a fellow unnamed employee, behavior that had been witnessed by three other unnamed employees.

On April 12, 2012, Pace filed her case in Eaton Circuit Court, claiming her firing had been a violation of public policy and the state's Whistleblowers’ Protection Act. The court later granted the defendants’ motion for summary disposition, which Pace appealed.

The Court of Appeals reversed the trial court decision on the WPA claim but agreed Pace's termination has not been a violation of public policy. The defense then appealed to the state's Supreme Court.

Last month, the high court, without granting leave to appeal or hearing oral arguments, issued a unanimous opinion that the state's Whistleblowers’ Protection Act does not protect employees who report threatened or planned unlawful conduct before it happens.

"The Court’s ruling was based on the language of Michigan’s Whistleblower Protection Act, which does not contain any express provisions giving protection to a violation of law that is being actively planned, but which has not yet been acted on," VandeWyngearde said.

"The Court explained that the Act’s language of 'a violation or a suspected violation’ refers to an existing violation.

"The provision must therefore be read in the context of some conduct or act that has already occurred or is occurring, and not some conduct or act that may or may not occur.”

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