Employment Litigation in Michigan

5/19/2019 Employment Litigation in Michigan
Employment Litigation in Michigan
Chapter 4: Whistleblower
and Retaliation Claims
Brian A. Kreucher Howard & Howard Attorneys PLLC ; Joey S. Niskar The
Niskar Law Firm PLLC
I. Overview
§4.1 This chapter discusses claims brought under the Michigan and federal whistleblower
statutes as well as retaliation claims under state and federal employment discrimination
statutes. The discussion focuses on the special evidentiary and proof issues that are
required for successful claims under these statutes.
II. Whistleblowers’ Protection Act
A. Purpose of the WPA; Who Is Protected
§4.2 Michigan’s Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., was enacted
in 1980 to protect employees who report or are about to report a violation or suspected
violation of local, state, or federal law to a public body. The WPA also protects employees
who participate in related investigations of their employer. MCL 15.362 states:
An employer shall not discharge, threaten, or otherwise discriminate against

an employee regarding the employee’s compensation, terms, conditions,
location, or privileges of employment because the employee, or a person
acting on behalf of the 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 law of this state, a political subdivision of this state,
or the United States to a public body, unless the employee knows that the
report is false, or because an employee is requested by a public body to
participate in an investigation, hearing, or inquiry held by that public body, or
a court action.
The purpose of the WPA is to protect the public by protecting an employee from adverse
employment actions when the employee blows the whistle on his or her employer to a
public body for a violation or suspected violation of the law.
The WPA represents the legislature’s judgment that one may best combat employer
corruption and criminally irresponsible behavior by protecting employees who report that
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behavior to a public body. The WPA’s protection extends only to those employees engaged
in protected activity, as defined by the act. Chandler v Dowell Schlumberger Inc, 456 Mich
395, 398, 572 NW2d 210 (1998). Because the WPA is a remedial statute, it will be liberally
construed to favor the persons the legislature sought to benefit. Shallal v Catholic Soc
Servs, 455 Mich 604, 611, 566 NW2d 571 (1997).
B. Definitions
§4.3 The WPA defines employer as a person who has one or more employees; the term
includes an agent of an employer and the state or a political subdivision of the state. MCL
15.361(b). Thus, an employer with only one employee is subject to the WPA. The State of
Michigan is a covered employer and is not immune from suit brought in circuit court as
opposed to the court of claims. Anzaldua v Band, 457 Mich 530, 553, 578 NW2d 306
(1998).
The WPA defines employee as a person who performs a service for wages or other
remuneration under a contract of hire, written or oral, express or implied. MCL 15.361(a).
An employee includes a person employed by the state or a political subdivision of the state
except state classified civil service. Id. Note that independent contractors are not
considered employees under the WPA. As explained by one court, where plaintiff attorney
was not in-house counsel for defendant city, maintained his own office, and had his own
support staff at his firm’s location, plaintiff was an independent contractor and outside the
protection of the WPA. Chilingirian v City of Fraser, 200 Mich App 198, 504 NW2d 1
(1993); Foster v Judnic, 963 F Supp 2d 735, 765 (ED Mich 2013), aff’d sub nom Foster v
Michigan, No 13-2209 (6th Cir July 16, 2014) (unpublished). Along the same reasoning, a
contract employee is considered a prospective employee. Wurtz v Beecher Metro Dist, 495
Mich 242, 249, 848 NW2d 121 (2014). Thus, a contract employee whose contract is not
renewed is not protected by the WPA. Id. Another unprotected individual is a child of an
employee claiming injuries as a result of the employee’s termination under the WPA.
Burchett v RX Optical, 232 Mich App 174, 182, 591 NW2d 652 (1998); see also Brendan J.
Atkins, Labor Law—Michigan’s Whistleblowers’ Protection Act—WPA Protects from
Retaliatory Discharge Those Employees Who Report the Crimes of Co-Workers Arising
Out of Workplace Disputes Over the Handling of the Employer’s Business, 71 U Det Mercy
L Rev 1081, 1093 (1994).
It is important to note that the definition of public body in MCL 15.361(d) includes state,
county, city, township, and other government entities or employers, including law
enforcement agencies, but does not specifically include federal agencies. Hall v Consumers
Energy Co, No 259634 (Mich Ct App May 30, 2006) (unpublished). For example, one court
concluded that the Wayne County Department of Social Services was a public body under
the WPA. Branch v Azalea/Epps Home, Ltd, 189 Mich App 211, 472 NW2d 73 (1991).
Federal agencies are considered a public body under the “law enforcement agency” section
of the WPA’s definition of public body. Ernsting v Ave Maria Coll, 274 Mich App 506, 736
NW2d 574 (2007). Thus, reports to federal agencies are not reports to public bodies (and
thus not protected under the WPA) unless the federal entity is a law enforcement agency
under MCL 15.361(d)(v). Lewandowski v Nuclear Mgmt Co, LLC, 272 Mich App 120, 724
NW2d 718 (2006). The Michigan Court of Appeals has held the federal Department of
Energy to be a law enforcement agency under the WPA because it has powers to conduct
civil and criminal investigations relating to its operations. Ernsting. Similarly, the Office of
Federal Contracts Compliance Programs is considered a public body under the WPA.
Robinson v Radian, Inc, 624 F Supp 2d 617, 628 (ED Mich 2008).
C. Elements and Burden of Proof
1. Prima Facie Case
§4.4 To establish a prima facie case under the Michigan WPA, a plaintiff must show that
(1) he or she was engaged in protected activity, as defined by the act; (2) he or she was
discharged, threatened, or discriminated against; and (3) a causal connection existed
between the protected activity and the discharge. Whitman v City of Burton, 493 Mich 303,
831 NW2d 223 (2013), on remand, 305 Mich App 16, 850 NW2d 621, vacated and
remanded on other grounds, 497 Mich 896, 855 NW2d 746 (2014), dismissed on remand,
311 Mich App 315, 874 NW2d 743 (2015), vacated in part on other grounds and leave to
appeal denied, 499 Mich 861, 873 NW2d 593 (2016); Debano-Griffin v Lake Cty Bd of
Comm’rs, 493 Mich 167, 828 NW2d 634 (2013); Shallal v Catholic Soc Servs, 455 Mich
604, 566 NW2d 571 (1997); Ernsting v Ave Maria Coll, 274 Mich App 506, 736 NW2d 574
(2007); Heckmann v Detroit Chief of Police, 267 Mich App 480, 705 NW2d 689 (2005),
overruled in part on other grounds, Brown v Mayor of Detroit, 478 Mich 589, 734 NW2d
514 (2007); Henry v City of Detroit, 234 Mich App 405, 594 NW2d 107 (1999).
The plaintiff has the burden of establishing a prima facie case by a preponderance of the
evidence unless the employee claims that he or she was about to report a violation of law to
a public body, in which case clear and convincing evidence is required. MCL 15.363(4);
Koets v American Legion, No 333347 (Mich Ct App Aug 08, 2017) (unpublished) (plaintiff
did not present evidence to support finding that plaintiff’s employment was terminated
because she engaged in protected activity).
Once the employee has established a prima facie case under the WPA, a rebuttable
presumption of retaliation arises. The burden then shifts to the defendant, which must
establish that the adverse employment action was the result of legitimate business reasons.
If the defendant is successful in establishing legitimate business reasons for the adverse
employment action, the burden then shifts to the plaintiff to prove that the legitimate
business reasons offered by the defendant are merely a pretext for prohibited WPA
retaliation. Debano-Griffin; Hazle v Ford Motor Co, 464 Mich 456, 628 NW2d 515 (2001);
Eckstein v Kuhn, 160 Mich App 240, 246, 408 NW2d 131 (1987). To show pretext in a
retaliatory discharge case, the analysis focuses on the following questions: (1) Did
participation in the protected activity play any part in the discharge, no matter how
remote? (2) Was plaintiff’s protected activity a substantial factor in the discharge? (3) Was
plaintiff’s protected activity a principal if not the sole reason for the discharge? (4) Would
the discharge have occurred absent the protected activity? Hopkins v Midland, 158 Mich
App 361, 404 NW2d 744 (1987); Melchi v Burns Int’l Sec Servs, Inc, 597 F Supp 575 (ED
Mich 1984). For example, in Thompson v Aramark Sch Support Servs, 490 F3d 506 (6th
Cir 2007), it was a question of fact whether plaintiff was discharged for a legitimate,
nonretaliatory reason where the employer’s discharge letter did not specify that plaintiff’s
statements to a school board or her failure to report to her supervisors violated the
employer’s work rules and was the cause for her termination. For other cases involving
genuine issues of fact in regard to pretext, see Schaefer v Plymouth Twp, No 328054 (Mich
Ct App Nov 10, 2016) (unpublished) (no genuine issue of material fact regarding causal
connection between protected activity and plaintiff’s termination because plaintiff simply
asked court to conclude employer’s reasons for termination were not credible); Davis v
Flint Hous Comm’n, No 330975 (Mich Ct App July 18, 2017) (unpublished) (interrogatories
containing contrasting and ever-shifting reasons for plaintiff’s discharge raised inference
that defendant’s proffered reasons were not actual factors motivating termination
decision); and Ramsey v Laborers’ Local 1191, No 329920 (Mich Ct App May 23, 2017)
(unpublished) (submissible jury question regarding pretext when employer fired only some
of employees for meeting secretly to oust business manager).
2. Plaintiff Engaged in Protected Activities
a. In General
§4.5 Under the WPA, protected activities include reporting or being about to report an
employer’s violations of law, regulation, or rule to a public body and participating in an
investigation held by a public body or in a court action. MCL 15.362; Landin v
Healthsource Saginaw, Inc, 305 Mich App 519, 854 NW2d 152 (2014); Hays v Lutheran
Soc Servs of Michigan, 300 Mich App 54, 832 NW2d 433 (2013); Ernsting v Ave Maria
Coll, 274 Mich App 506, 736 NW2d 574 (2007); Wallace v Wayne Cty, No 13-2704 (6th Cir
Feb 6, 2015) (unpublished); Briggs v University of Detroit-Mercy, 22 F Supp 3d 798 (ED
Mich 2014); Hilden v Hurley Med Ctr, 831 F Supp 2d 1024 (ED Mich 2011), aff’d, No 11–
2583 (6th Cir Nov 5, 2012) (unpublished). In Pace v Edel-Harrelson, 499 Mich 1, 878
NW2d 784 (2016), the court held that because “a violation or a suspected violation” refers
to an existing violation of a law, the plain language of MCL 15.362 envisions an act or
conduct that has actually occurred or is ongoing. The statute does not contain language
encompassing future, planned, or anticipated acts amounting to a violation or a suspected
violation of a law. Because plaintiff in this case merely reported another’s intent to violate a
law in the future, she had no recourse under the WPA.
The WPA protects both an employee whose job is to report the violations as well as an
employee who acts outside of his or her employment duties when reporting violations.
Brown v Mayor of Detroit, 478 Mich 589, 734 NW2d 514 (2007); Podzikowski v Township
of Albert, No 296083 (Mich Ct App July 26, 2011) (unpublished); Saulter v Detroit Area
Agency on Aging, No 12-2203 (6th Cir Apr 4, 2014) (unpublished). The WPA also protects
employees when a suspected violation of law is reported. For example, when a plaintiff
reported her concerns that certain funds were being used for purposes other than those
stated on a millage ballot, she was reporting a “suspected violation of a law” and, thus, was
engaged in protected activity. Debano-Griffin v Lake Cty, 486 Mich 938, 782 NW2d 502
(2010), later proceedings, 493 Mich 167, 828 NW2d 634 (2013).
Another example of a protected activity under the WPA is reporting violations of law by
coworkers or colleagues. In Kimmelman v Heather Downs Mgmt Ltd, 278 Mich App 569,
575, 753 NW2d 265 (2008), the court ruled that the WPA’s statute of limitations barred
plaintiff’s claim, which was based on his participation in a criminal investigation and court
action involving a sexual assault of a coworker by one of defendants’ co-owners, because
the claim arose exclusively under the WPA: “There is absolutely nothing, express or
implied, in the plain wording of the statute that limits its applicability to violations of law
by the employer or to investigations involving the employer.” Id. Also, an employee who
reports a violation of law by a fellow employee is protected under the WPA. See Dudewicz v
Norris-Schmid, Inc, 443 Mich 68, 76, 503 NW2d 645 (1993). However, where plaintiff
worked as a home health care provider and contacted the police about a client’s marijuana
use only to obtain information about her hypothetical liability, not to provide law
enforcement officials with any concrete facts from which they could actually investigate or
enforce the law, she failed to establish that she made a report under the WPA. Hays.
The WPA also protects employees who report a violation of law by the employer’s tenant or
customer. Terzano v Wayne Cty, 216 Mich App 522, 549 NW2d 606 (1996). Moreover, in
Dolan v Continental Airlines/Continental Express, 454 Mich 373, 563 NW2d 23 (1997),
allegations that plaintiff had been discharged for reporting suspected drug traffickers or
terrorists to the U.S. Drug Enforcement Agency, without management approval, were
sufficiently related to the employment setting to state a claim under the WPA. In McNeill-
Marks v Midmichigan Med Ctr—Gratiot, 316 Mich App 1, 891 NW2d 528 (2016), the court
of appeals held that plaintiff nurse presented a prima facie case under the WPA when there
was evidence that she reported a suspected violation of a PPO by a patient in defendant
medical center.
An employee will be protected from adverse employment action when he or she in good
faith reports or is about to report an employer’s violation or suspected violation of the law
to a public body. Truel v City of Dearborn, 291 Mich App 125, 804 NW2d 744 (2010).
However, the WPA does not protect employees who knowingly make false reports of
alleged violations. Whitman v City of Burton, 493 Mich 303, 831 NW2d 223 (2013), on
remand, 305 Mich App 16, 850 NW2d 621, vacated and remanded on other grounds, 497
Mich 896, 855 NW2d 746 (2014), dismissed on remand, 311 Mich App 315, 874 NW2d 743
(2015), vacated in part on other grounds and leave to appeal denied, 499 Mich 861, 873
NW2d 593 (2016).
b. Reporting to a Public Body
§4.6 The scope of protected activities under the WPA covers reports by an employee to a
public body but does not extend to reports to internal committees unless the employer is a
public body. For example, when a hospital employee reported a violation to the hospital’s
peer review committee, the employee was not protected by the WPA because the court held
the peer review committee was not a public body. Manzo v Petrella, 261 Mich App 705, 683
NW2d 699 (2004).
The court of appeals has held that an attorney licensed in the State of Michigan is a public
body under the WPA because attorneys are members of a body created and primarily
funded by or through state authority. McNeill-Marks v Midmichigan Med Ctr—Gratiot,
316 Mich App 1, 891 NW2d 528 (2016). However, in Rivera v SVRC Indus, Inc, No 341516,
___ Mich App ___, ___ NW2d ___ (Apr 4, 2019), the court clarified that “[a]lthough
McNeill does hold that a licensed attorney is a member of a “public body” for purposes of
the WPA, it does not compel the conclusion” that a particular plaintiff's conversation with a
licensed attorney is necessarily “a ‘report’ of a violation (or suspected violation) of the law.”
The Rivera court held that “under the WPA, a plaintiff ‘reports’ a violation of the law when
he or she ‘makes a charge’ of illegality against a person or entity, or ‘makes known’ to a
public body pertinent information related to illegality.”
An employee who works at a public body, as defined by the WPA, does not have to report a
violation to an outside agency or higher authority to be protected under the WPA. Brown v
Mayor of Detroit, 478 Mich 589, 734 NW2d 514 (2007); Hilden v Hurley Med Ctr, 831 F
Supp 2d 1024 (ED Mich 2011), aff’d, No 11–2583 (6th Cir Nov 5 2012) (unpublished). In
Heckmann v Detroit Chief of Police, 267 Mich App 480, 705 NW2d 689 (2005), overruled
in part on other grounds by Brown, the court held that plaintiff’s letter to the mayor of
Detroit concerning wrongdoing in the police department satisfied the statutory definition
of public body.
Religious institutions are not subject to claims under the WPA by ministerial employees
due to the constitutionally imposed ministerial exception under the First Amendment.
Weishuhn v Catholic Diocese, 287 Mich App 211, 225, 787 NW2d 513 (2010). The
ministerial exception constitutionally bars any claim that would limit a religious
institution’s right to select who will perform particular spiritual functions.
c. About to Report Violations
§4.7 A difficult issue under the WPA is determining when an employee was “about to
report” a suspected violation of law to a public body. Chandler v Dowell Schlumberger Inc,
456 Mich 395, 402, 572 NW2d 210 (1998); Hays v Lutheran Soc Servs of Michigan, 300
Mich App 54, 832 NW2d 433 (2013). An employee must prove by clear and convincing
evidence that he or she, or a person acting on his or her behalf, was about to report,
verbally or in writing, a violation or a suspected violation of Michigan law to a public body
and that the person who fired the employee was objectively aware that he or she was about
to make a report before the employee was fired. MCL 15.363(4); Briggs v University of
Detroit-Mercy, 22 F Supp 3d 798 (ED Mich 2014). The clear and convincing evidence
standard applies to the “about to report” element only and not to other elements of the
plaintiff’s claim. Phinney v Perlmutter, 222 Mich App 513, 557, 564 NW2d 532 (1997). An
employer is entitled to objective notice of a report or a threat to report by an employee.
Hays. For instance, when the employee sent a letter to a colleague and not to a supervisor
about potentially reporting prescription violations to the proper authorities, the employer
did not have objective notice of a report by the employee. Mikhaeil v Walgreens Inc, No 13-
14107 (ED Mich Feb 24, 2015).
Where there is sufficient evidence that an employee was about to report a violation or
suspected violation of law, the employee is protected by the WPA. Shallal v Catholic Soc
Servs, 455 Mich 604, 620–621, 566 NW2d 571 (1997) (“the plaintiff’s express threat to the
wrongdoer that she would report him if he did not straighten up, especially coupled with
her other actions, was more than ample to conclude that reasonable minds could find that
she was ‘about to report’ a suspected violation of the law to the DSS”). In Lynd v Adapt,
Inc, 200 Mich App 305, 503 NW2d 766 (1993), the court held that plaintiff was protected
under the “about to report” element where plaintiff made several attempts to remedy what
she believed to be an improper practice by reporting the alleged abuse to her supervisors
and the organization’s board of directors and contacting her state representative to learn
whom she could contact to report the suspected abuse. In light of this evidence, plaintiff’s
report of alleged abuse to a public body after her discharge was not dispositive of the issue
of whether she was about to report before her termination from employment.
d. Request by Public Body to Participate in Investigation
§4.8 In Henry v City of Detroit, 234 Mich App 405, 594 NW2d 107 (1999), plaintiff was
awarded a $1.08 million jury verdict on his WPA claim. Plaintiff was the police commander
who chaired the board of review investigating the highly publicized death of Malice Green.
In a related civil lawsuit, plaintiff gave a deposition wherein he testified that the
department rules concerning the board of review were violated and that the board was not
allowed to perform its duties. Shortly thereafter, plaintiff prevailed on his WPA claim, and
defendant appealed, arguing that plaintiff was not engaged in protected activity because his
deposition testimony was not a report to a public body. The court of appeals agreed but did
not reverse. The court reasoned that the WPA protects two types of whistleblowers: a “type
1” whistleblower, who, on his or her own initiative, takes it upon himself or herself to
communicate the employer’s wrongful conduct to a public body; and a “type 2”
whistleblower, who participates in a previously initiated investigation or hearing at the
behest of a public body. The court held that plaintiff was a type 2 whistleblower because the
civil lawsuit was filed to expose and remedy alleged improprieties in a police department
investigation and because plaintiff was compelled to testify, under the Michigan Court
Rules, as part of the discovery process.
In Shaw v City of Ecorse, 283 Mich App 1, 770 NW2d 31 (2009), plaintiff was considered a
type 2 whistleblower where he was subpoenaed and testified on behalf of a former
employee in a discrimination suit. While he may not have testified about a specific violation
of law committed by defendant, plaintiff directly contradicted several witnesses and
substantiated many of the former employee’s claims. Similarly, reports given because the
employee is requested to participate in an investigation by a public body are still considered
protected activity. Whitman v City of Burton, 497 Mich 896, 855 NW2d 746 (2014),
dismissed on remand, 311 Mich App 315, 874 NW2d 743 (2015), vacated in part on other
grounds and leave to appeal denied, 499 Mich 861, 873 NW2d 593 (2016); Anzaldua v
Neogen Corp, 292 Mich App 626, 808 NW2d 804 (2011); Ernsting v Ave Maria Coll, 274
Mich App 506, 736 NW2d 574 (2007).
3. Employee Suffered Adverse Employment Action
§4.9 For an employer’s action to amount to an adverse employment action under the
WPA, the action must be materially adverse, meaning that it must be more than a mere
inconvenience or an alteration of job responsibilities. Wurtz v Beecher Metro Dist, 495
Mich 242, 251, 848 NW2d 121 (2014). In addition, adverse employment actions typically
take the form of an ultimate employment decision, such as a termination in employment, a
demotion evidenced by a decrease in wage or salary, a less distinguished title, a material
loss of benefits, significantly diminished material responsibilities, or other indicators that
might be unique to a particular situation. Peña v Ingham Cty Rd Comm’n, 255 Mich App
299, 660 NW2d 351 (2003). The WPA’s definition of adverse employment action is
narrower than that under the federal and state antidiscrimination statutes. A plaintiff must
demonstrate one of the specific adverse employment actions listed in the WPA. Wurtz at
246. Such adverse employment actions include termination, threats, or other

discrimination against an employee regarding compensation, terms, conditions, location,
or privileges of employment. MCL 15.362. For example, in Toward v City of Warren, No
319858 (Mich Ct App June 23, 2015) (unpublished), the court ruled that a reassignment of
a police officer was not an adverse employment action. See also Burkhardt v Bayliss, No
330092 (Mich Ct App July 18, 2017) (unpublished) (forced wellness check, assignment to
light duty work after foot surgery, and notice that plaintiff is subject of internal
investigation for unsatisfactory work performance are not adverse employment actions).
However, the supreme court held that a complaint sufficiently alleged discrimination under
the WPA when a police officer was assigned to the night shift in a section of the city known
to be more dangerous than other sections. Smith v City of Flint, 500 Mich 938, 889 NW2d
507 (2017).
The court of appeals held that a genuine issue of material fact existed regarding whether
the release of an employee’s name to the press as a whistleblower amounted to an adverse
employment action. In Brown v Mayor of Detroit, 271 Mich App 692, 708, 723 NW2d 464
(2006), aff’d in part, vacated in part, 478 Mich 589, 734 NW2d 514 (2007), plaintiff
alleged that the mayor of Detroit released his name to the press in connection with his
report to the Professional Accountability Bureau of the Detroit Police Department about
illegal conduct by the mayor’s inner circle. The court found the release of plaintiff’s name to
the public made the condition of his employment so intolerable that he was constructively
discharged from his position. Id.
4. Causal Connection Between Protected Activity and Adverse Action
a. In General
§4.10 The final element in establishing a prima facie case under the WPA is proving a
causal connection between the protected activity and the adverse employment action. In
Shallal v Catholic Soc Servs, 455 Mich 604, 620–621, 566 NW2d 571 (1997), the court held
that because plaintiff used the threat of reporting the president to force him to allow her to
keep her job, no reasonable juror would conclude that there was a causal connection
between her discharge and the protected activity because the employee knew she was going
to be fired before she confronted her supervisor. For other cases addressing the “causal
connection” requirement, see Schuessler v Roman Catholic Diocese, No 331985 (Mich Ct
App June 20, 2017) (unpublished) (familial relationship was insufficient to infer
causation); Cirenese v Torsion Control Prods, No 331208 (Mich Ct App May 16, 2017)
(unpublished) (defendant’s welcomed response to plaintiff’s police report as means to
definitively determine how events transpired indicates there is no factual basis in record to
infer retaliatory motive on part of defendants); Brooks v Genesee Cty, No 330119 (Mich Ct
App July 13, 2017) (unpublished) (fact that employee apparently suffered adverse
employment action is not, in and of itself, proof of causation); Henry v City of Detroit, 234
Mich App 405, 594 NW2d 107 (1999) (question of whether plaintiff’s deposition testimony
or job performance was reason for defendants’ action against plaintiff was properly left to
jury; verdict for plaintiff affirmed); Roberson v Occupational Health Ctrs of America, 220
Mich App 322, 559 NW2d 86 (1995) (affirming summary disposition to the employer on
plaintiff’s whistleblower claim because plaintiff was unable to show causal connection
between her termination and filing of complaint); and James v HRP, Inc, 852 F Supp 620
(WD Mich 1994) (finding ample evidence from which jury could find causal link between
plaintiff’s attempts to document animal abuse and her termination). Finally, in cases where
the plaintiff lacks direct proof and must use circumstantial evidence to prove a causal
connection, the burden-of-proof analysis set forth in McDonnell Douglas Corp v Green, 411
US 792 (1973), applies. See §4.21.
b. More Than Temporal Connection Between Protected Conduct and Adverse

Action Is Required
§4.11 A close temporal connection between the protected activity and the adverse action
standing alone will not be enough to establish a prima facie case under the WPA. West v
GMC, 469 Mich 177, 186, 665 NW2d 468 (2003); Rivera v SVRC Indus, Inc, No 341516,
___ Mich App ___, ___ NW2d ___ (Apr 4, 2019); Turner v Board of Hosp Managers of
Hurley Med Ctr, No 331387 (Mich Ct App June 27, 2017) (unpublished). As the Sixth
Circuit Court of Appeals explained, plaintiffs are required to offer additional evidence from
which a jury could infer that an employee’s intent to report the alleged mistreatment
influenced an employer’s decision to terminate the employee. Kuhn v Washtenaw Cty, 709
F3d 612, 630 (6th Cir 2013). While an approximate seven-month span of time between a
plaintiff’s protected activity and termination may be too long to raise an inference of
discrimination, it is not too great to conclude that the two events are unrelated.
Springsteen v Garrett, 885 F Supp 2d 835 (ED Mich 2012). In Springsteen, plaintiff did
not rely solely on a temporal proximity between the protected activity and his termination.
Instead, plaintiff also relied on intervening events between the protected activity and his
termination seven months later.
In Thompson v Aramark Sch Support Servs, 490 F3d 506 (6th Cir 2007), the court found
a triable issue under the WPA where there was more than a temporal connection between
plaintiff’s protected activity and her discharge. Also, in Debano-Griffin v Lake Cty Bd of
Comm’rs, 493 Mich 167, 828 NW2d 634 (2013), the court of appeals erred when it
concluded that plaintiff failed to show more than a temporal relationship between her
protected activity of objecting to the transfer of funds by a county board of commissioners
and her termination. Plaintiff provided additional evidence to establish her prima facie
case, in particular where her position became unfunded within 12 days, which overlapped
with the time plaintiff engaged in the protected activity. Plaintiff successfully rebutted
defendants’ budgetary justification for her termination, and her ability to challenge the
motives of the board did not call into question the board’s business judgment, because her
argument was that the budgetary decision had no basis in fact, not that the board’s decision
was unwise. By contrast, in West, the court held that plaintiff failed to establish a prima
facie case under the WPA because he did not present evidence that would allow a
reasonable juror to find a causal connection between the police report made by plaintiff
and the subsequent employment decisions affecting him.
c. Employer Must Know or Believe That the Employee Is Engaged in Protected

Activity
§4.12 An employer must know of a reported violation by the employee to establish a

causal connection between the protected activity and the adverse employment action. In
Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 257, 503 NW2d 728 (1993), the
court held that plaintiff failed to raise a genuine issue of material fact concerning her WPA
claim because the employer did not receive “objective notice of a report or a threat to report
by the whistleblower.” The court said, “Neither Kaufman’s nor the firm’s knowledge that
Nikkila had retained counsel, together with other unspecified evidence, yields an inference
that the firm believed before she resigned that she would report her complaints to
responsible agencies.” Id. at 257–258; see also Annotation, Liability for Retaliation
Against At-Will Employee for Public Complaints or Efforts Relating to Health or Safety,
75 ALR4th 13, §4. However, in Roulston v Tendercare, Inc, 239 Mich App 270, 608 NW2d
525 (2000), a nursing home employee claimed that she was terminated in retaliation for
reporting incidents of suspected patient abuse to state investigators. The firing supervisor
denied having any knowledge of the report until after the decision had been made to
terminate plaintiff for poor performance. The court found that the supervisor’s anger, red
face, abrupt “you’re through,” and insistence on accompanying plaintiff while she packed
her belongings suggested that he knew about plaintiff’s report when he fired her.
Furthermore, the employer’s allegations of poor performance were belied by the “average”
grades plaintiff received on her written performance evaluation.
D. Remedies
§4.13 The courts have confirmed that the WPA provides the exclusive remedy for an
employee who has been wrongfully discharged for reporting an employer’s violation of the
law to a public body. See Driver v Hanley, 207 Mich App 13, 523 NW2d 815 (1994), appeal
after remand, 226 Mich App 558, 574 NW2d 31 (1997); see also McNeill-Marks v
Midmichigan Med Ctr—Gratiot, 316 Mich App 1, 891 NW2d 528 (2016) (plaintiff’s public
policy claim preempted by her WPA claim because they arose out of same activity)..
MCL 15.364 provides the remedies available to employees under the WPA: “reinstatement
of the employee, the payment of back wages, full reinstatement of fringe benefits and
seniority rights, actual damages, or any combination of these remedies.” In addition,
emotional distress damages are available to a plaintiff. As the court of appeals explained, to
the extent that a plaintiff can prove emotional distress damages related to a WPA violation,
the exclusive remedy is under the WPA and not as a separate tort claim. Heckmann v
Detroit Chief of Police, 267 Mich App 480, 705 NW2d 689 (2005), overruled in part on
other grounds, Brown v Mayor of Detroit, 478 Mich 589, 734 NW2d 514 (2007). Notably,
the WPA allows a successful plaintiff to be awarded the costs of litigation, which include
attorney fees and witness fees. MCL 15.364. This includes postjudgment attorney fees.
Cadwell v City of Highland Park, No 338070, ___ Mich App ___, ___ NW2d ___ (June
19, 2018).
There is a right to a jury trial for actions brought under the WPA, particularly because the
statute includes the phrase “actual damages,” which demonstrates the legislative intent that
the act contain a right to trial by jury. Madugula v Taub, 496 Mich 685, 701, 853 NW2d 75
(2014); Anzaldua v Band, 457 Mich 530, 578 NW2d 306 (1998).
E. Statute of Limitations
§4.14 There is a short time period for an employee to bring an action under the WPA.
Such a claim must be brought within 90 days after the occurrence of the alleged violation of
the WPA. MCL 15.363(1). An action brought after 90 days is barred, regardless of the
remedy sought. Covell v Spengler, 141 Mich App 76, 366 NW2d 76 (1985). A cause of action
under the WPA begins to run as of the date of the employer’s challenged wrongful action.
In Joliet v Pitoniak, 475 Mich 30, 715 NW2d 60 (2006), the supreme court overruled
Jacobson v Parda Fed Credit Union, 457 Mich 318, 577 NW2d 881 (1998), which had held
that the date of resignation triggers the statute of limitations for a constructive discharge
claim, and stated instead that “in the context of a constructive discharge it is the employer’s
wrongful act that starts the period of limitations by causing the employee to feel compelled
to resign, not the employee’s response.” However, in Millar v Construction Code Auth, 501
Mich 233, 912 NW2d 521 (2018), the Michigan Supreme Court, distinguishing Joliet, held
that the 90-day period begins to run on the date the employer takes the alleged
discriminatory action against the employee and not on the date the employer merely
decides to take that action.
The plaintiff may not avoid the WPA’s short limitations period by using another theory
based on the same fact pattern because the WPA is the plaintiff’s exclusive remedy for
whistleblower retaliation. Phinney v Perlmutter, 222 Mich App 513, 564 NW2d 532 (1997);
see also Branch v Azalea/Epps Home, Ltd, 189 Mich App 211, 472 NW2d 73 (1991).
F. Jurisdiction
§4.15 An action under the WPA may be brought in the circuit court for the county in
which the alleged violation occurred, in which the plaintiff resides, or in which the person
against whom the action is filed resides or has his or her principal place of business. MCL
15.363(2). The circuit court has exclusive jurisdiction over actions brought under the WPA,
regardless of the amount in controversy. Driver v Hanley, 207 Mich App 13, 523 NW2d 815
(1994), appeal after remand, 226 Mich App 558, 575 NW2d 31 (1997).
G. Collective Bargaining and Arbitration Agreements
§4.16 The WPA may not be construed to diminish or impair the rights of union employees
under their collective bargaining agreements. MCL 15.366. Relying on the supreme court
decision in Heurtebise v Reliable Bus Computs, 452 Mich 405, 550 NW2d 243 (1996), cert
denied, 520 US 1142 (1997), a panel of the Michigan Court of Appeals held that a
unilaterally imposed predispute mandatory arbitration provision found in the employer’s
handbook was unenforceable with respect to the employee’s claim under the WPA because
a binding contract to arbitrate was not formed by the parties. The court declined to decide
whether, as a public-policy matter, an employer can require its employees to waive
prospectively their rights to pursue WPA claims in court. Stewart v Fairlane Cmty Mental
Health Ctr, 225 Mich App 410, 571 NW2d 542 (1997). The viability of Stewart is in doubt in
light of Rembert v Ryan’s Family Steak Houses, Inc, 235 Mich App 118, 596 NW2d 208
(1999), which held that a predispute agreement to arbitrate an employment dispute arising
under Michigan’s antidiscrimination laws does not violate Michigan public policy; see also
§2.14. Rembert can be read to be applicable to all statutory employment claims, including
the WPA. In the absence of a clear agreement to arbitrate whistleblower claims, an
arbitrator’s decision does not have a res judicata or preclusive effect on an employee’s
action under the WPA. Hopkins v Midland, 158 Mich App 361, 404 NW2d 744 (1987).
Also, union employees do not have to show that a contract right was denied before they can
bring an action. Id. But see Cole v West Side Auto Employees Fed Credit Union, 229 Mich
App 639, 583 NW2d 226 (1998), in which the voluntary submission of a WPA claim to
arbitration precluded relitigation of the WPA claim in circuit court where the arbitrator
ruled against the employee. Moreover, the substantive protection of the WPA does not
depend on whether an employee is subject to a collective bargaining agreement. Hopkins.
Furthermore, plaintiffs do not need to exhaust administrative remedies, such as filing a
union grievance, before bringing an action under the WPA. See Heckmann v Detroit Chief
of Police, 267 Mich App 480, 705 NW2d 689 (2005), overruled in part on other grounds,
Brown v Mayor of Detroit, 478 Mich 589, 734 NW2d 514 (2007); Tuttle v Bloomfield Hills
Sch Dist, 156 Mich App 527, 402 NW2d 54 (1986). Michigan’s adoption of the Uniform
Arbitration Act, effective July 1, 2013, most likely makes agreements to arbitrate WPA
claims enforceable.
H. Federal Laws
§4.17 There are 21 federal laws that have whistleblower provisions. See exhibit 4.1 for a
list of these provisions. OSHA’s Whistleblower Protection Program enforces the
whistleblower provisions of several federal statutes. The U.S. Office of Special Counsel is
the specific body to which an employee may report violations or suspected violations of the
law by employers. This office investigates both alleged violations by employers as well as
claims of retaliation.
The federal Whistleblower Protection Act of 1989, 5 USC 2302(b)(8), provides protection
from adverse employment actions to federal employees who have reported or were about to
report agency misconduct. See chapter 11 for further discussion of this statute.
In Henry v Laborers’ Local 1191, 495 Mich 260, 848 NW2d 130 (2014), plaintiffs alleged
that defendants violated the Michigan WPA by discharging plaintiffs in retaliation after
plaintiffs reported to the U.S. Department of Labor their suspicions of fraud,
embezzlement, improper wages, and unsafe working conditions and participated in the
Department of Labor’s ensuing investigation. The court held that neither the National
Labor Relations Act (NLRA) nor the Labor-Management Reporting and Disclosure Act
(LMRDA) preempted the WPA claims based on reporting suspected criminal misconduct.
The NLRA does not cover the reporting of suspected criminal misconduct, while the
LMRDA does not give a union official discretion to cover up suspected criminal misconduct
by retaliating against employees who report their allegations. However, plaintiffs’
allegations of retaliation for their reporting of improper wages and an unsafe work
environment covered conduct that was arguably prohibited by the NLRA and must be
litigated exclusively before the National Labor Relations Board.
An employee who reports a public health or safety violation to local authorities may
maintain an action under the Michigan WPA even if the employer’s wrongful conduct
violates the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et
seq. In other words, an administrative action for wrongful discharge under MIOSHA is not
an employee’s exclusive remedy. Tyrna v Adamo, Inc, 159 Mich App 592, 407 NW2d 47
(1987); see also Ackison v Detroit Edison Co, 751 F Supp 1245 (ED Mich 1990) (Energy
Reorganization Act of 1974 does not preempt state whistleblower claims because WPA does
not deal with nuclear safety and does not affect decision-making process involved in
operation of nuclear facilities).
III. Retaliation
A. Prohibitions Against Retaliation
§4.18 In addition to providing substantive proscriptions against discrimination on the

basis of protected characteristics, virtually all employment statutes prohibit employers
from retaliating against an employee (and those affiliated with the employee) who exercises
rights under the statutes, opposes suspected or actual violations of the statutes, or
participates in internal or external investigations into suspected or actual violations of the
statutes. See, e.g., 42 USC 2000e-3 (Title VII of the Civil Rights Act of 1964 (Title VII)); 29
USC 623(d) (Age Discrimination in Employment Act (ADEA)); 42 USC 12203 (Americans
with Disabilities Act (ADA)); 29 USC 215(a)(3) (Fair Labor Standards Act (FLSA)); 29 USC
2615 (Family and Medical Leave Act (FMLA)); 38 USC 4311(b) (Uniformed Service
Employment and Reemployment Rights Act (USERRA)); and MCL 37.2701(a) (Michigan
Elliott-Larsen Civil Rights Act (ELCRA)). The additional statutory prohibition against race
discrimination, 42 USC 1981, which prohibits discrimination on the basis of race in the
employment context, also prohibits employers from unlawfully retaliating against
individuals who oppose actual or suspected race discrimination or participate in
investigations into suspected or actual race discrimination. CBOCS West, Inc v Humphries,
553 US 442 (2008).
Violations of statutes such as Title VII and the ADEA, which prohibit an employer from
taking unlawful actions against an individual “because of” the protected activity, must be
proved according to traditional principles of but-for causation. University of Texas
Southwestern Med Ctr v Nassar, 570 US 338 (2013); Gross v FBL Fin Servs, 557 US 167
(2009). However, antiretaliation provisions such as that found in the FMLA, 29 USC 2615,
which do not contain the “because of” or similar language, are considered mixed-motive
statutes under which the individual can establish a claim of unlawful retaliation merely by
proving that the protected activity was a motivating factor in the employer’s decision.
Hunter v Valley View Local Sch, 579 F3d 688, 690–691 (6th Cir 2009); Knight v City of
Taylor, No 2:13-cv-13164 (ED Mich Mar 23, 2015).
The Michigan ELCRA requires a showing that the protected activity was a motivating factor
that made a difference in the employer’s decision, not that the protected activity was the
sole or main reason. Hazle v Ford Motor Co, 464 Mich 456, 462, 628 NW2d 515 (2001);
see also M Civ JI 105.02. The same holds true for claims brought under the Michigan WPA,
MCL 15.361 et seq. West v GMC, 469 Mich 177, 185, 665 NW2d 468 (2003); Shaw v City of
Ecorse, 283 Mich App 1, 14, 770 NW2d 31 (2009); Taylor v Modern Eng’g, Inc, 252 Mich
App 655, 660, 653 NW2d 625 (2002); Terzano v Wayne Cty, 216 Mich App 522, 533, 549
NW2d 606 (1996); see also M Civ JI 107.03. However, the Michigan Court of Appeals has
construed the Michigan Persons with Disabilities Civil Rights Act (PDCRA), MCL 37.1101 et
seq., to require a showing that the protected activity was a “significant factor” in the
employer’s decision. Aho v Department of Corr, 263 Mich App 281, 289, 688 NW2d 104
(2004).
B. Methods of Proving Unlawful Retaliation
1. In General
§4.19 A claim of retaliation can be established with either direct or circumstantial

evidence that would support an inference of retaliation. Laster v City of Kalamazoo, 746
F3d 714, 730 (6th Cir 2014). “The direct evidence and circumstantial evidence paths are
mutually exclusive; a plaintiff need only prove one or the other, not both.” Demyanovich v
Cadon Plating & Coatings, LLC, 747 F3d 419, 432 (6th Cir 2014) (citing Kline v TVA, 128
F3d 337, 348–349 (6th Cir 1997)).
2. Direct Evidence
§4.20 Direct evidence is evidence that, if believed, requires the conclusion that the at-
issue employment action was a product of unlawful retaliation. Daugherty v Sajar Plastics,
Inc, 544 F3d 696 (6th Cir 2008). To be direct, the evidence need only show that the
unlawful retaliation was “a motivating factor” in the employer’s action. Shazor v
Professional Transit Mgmt, 744 F3d 948, 955 (6th Cir 2014). Direct evidence does not
require the fact-finder to draw any inferences in order to conclude that the employer’s
decision was motivated at least in part by a retaliatory animus. Shazor, 744 F3d at 955.
When direct evidence exists, the burden-shifting paradigm set forth in McDonnell Douglas
Corp v Green, 411 US 792 (1973) (see §4.21), does not apply. Shazor, 744 F3d at 955.
Likewise, when direct evidence exists, the burden of proof shifts to the defendant to prove
that it would have made the same decision absent the impermissible motive. Id. See
§§2.19–2.23 for further discussion of what constitutes direct evidence.
3. Circumstantial Evidence
§4.21 In the absence of direct evidence, a claim of unlawful retaliation can be established
by applying the burden-shifting paradigm set forth in McDonnell Douglas Corp v Green,
411 US 792 (1973). Laster v City of Kalamazoo, 746 F3d 714, 730 (6th Cir 2014). The
McDonnell Douglas burden-shifting test remains applicable to retaliation claims for which
but-for causation must be established, even after the Supreme Court’s decision in Gross v
FBL Fin Servs, 557 US 167 (2009). Geiger v Tower Auto, 579 F3d 614, 622 (6th Cir 2009).
Under the burden-shifting approach set forth in McDonnell Douglas, the plaintiff must
first produce evidence to satisfy each element of the applicable prima facie case. The
burden of demonstrating a prima facie case is “not onerous” and is intended to be “easily
met,” with “minimal” evidence. Russell v University of Toledo, 537 F3d 596, 609 (6th Cir
2008); Imwalle v Reliance Med Prods, 515 F3d 531, 550 (6th Cir 2008). The plaintiff need
not present evidence that the employer’s decision was based on impermissible factors at
the prima facie case stage of the analysis. Dunlap v TVA, 519 F3d 626, 632 (6th Cir 2008).
If the plaintiff succeeds in demonstrating a prima facie case, a presumption of unlawful
discrimination arises, which must be rebutted by the defendant. Texas Dep’t of Cmty
Affairs v Burdine, 450 US 248, 254 n7 (1981). Thereafter, the burden shifts to the employer
to produce admissible evidence to support a finding that it had a legitimate, nonretaliatory

basis for the at-issue employment action. Burdine, 450 US at 254. Although the employer
does not bear the burden of persuasion on this issue, it does have a burden of production—
i.e., a burden to produce admissible evidence to substantiate the proffered nonretaliatory
reason. Dunlap, 519 F3d at 631 n4.
If the employer satisfies its burden of production, the burden shifts back to the employee to
demonstrate that the employer’s proffered lawful reasons for the employment action are a
mere pretext for unlawful retaliation. Pretext can be established by setting forth evidence
that the employer’s proffered reasons (1) are false or have no basis in fact, (2) did not
actually motivate the employer’s decision, or (3) were insufficient to motivate the
employer’s decision. Wexler v White’s Fine Furniture, Inc, 317 F3d 564, 576 (6th Cir 2003).
See §2.25 for a discussion of the burden-shifting paradigm.
There is no “business judgment” defense under which the court is permitted to grant any
deference to the subjective judgments of employers. White v Baxter Healthcare Corp, 533
F3d 381, 393 n6 (6th Cir 2008). As the Sixth Circuit held in White, “our Circuit has never
adopted a ‘business-judgment rule’ which requires us to defer to the employer’s ‘reasonable
business judgment’ in Title VII cases.” Id. The court in White went on to hold that “we
cannot … unquestionably accept the employer’s own self-serving claim that the decision
resulted from an exercise of ‘reasonable business judgment.’… Nor can we decide ‘as a
matter of law’ that ‘an employer’s proffered justification is reasonable.’” Id. Critically, the
court held that “[t]he question of whether the employer’s judgment was reasonable or was
instead motivated by improper considerations is for the jury to consider.” Id.
4. Prima Facie Case
a. Elements
§4.22 To establish a prima facie case of retaliation, the plaintiff must put forth evidence
demonstrating that (1) he or she engaged in protected activity, (2) the defendant knew of
the protected activity, (3) the defendant took a materially adverse employment action
against the plaintiff, and (4) a causal connection existed between the protected activity and
the adverse employment action. Blizzard v Marion Tech Coll, 698 F3d 275, 283 (6th Cir
2012), cert denied, 569 US 975 (2013); Lindsay v Yates, 578 F3d 407, 418 (6th Cir 2009);
Ladd v Grand Trunk WRR, 552 F3d 495, 502 (6th Cir 2009); Nguyen v City of Cleveland,
229 F3d 559, 563 (6th Cir 2000).
b. Protected Activity
§4.23 Most statutory antiretaliation provisions prohibit employers from retaliating

against an employee for exercising rights created by the particular statute, for opposing
violations of the statute, and for participating in enforcement proceedings under the
statute. In particular, Title VII “prohibits an employer from retaliating against an employee
who has ‘opposed’ any practice by the employer made unlawful under Title VII; and
prohibits an employer from retaliating against an employee who has ‘participated’ in any
manner in an investigation under Title VII.” Johnson v University of Cincinnati, 215 F3d
561, 578 (6th Cir 2000). “The distinction between employee activities protected by the
participation clause and those protected by the opposition clause is significant because
federal courts have generally granted less protection for opposition than for participation in
enforcement proceedings.” Niswander v Cincinnati Ins Co, 529 F3d 714, 720 (6th Cir
2008).
The “participation” clause provides “exceptionally broad protections” that extend to

individuals who have “participated in any manner in Title VII proceedings.” Niswander,
529 F3d at 720. “Once the activity in question is found to be within the scope of the
participation clause, the employee is generally protected from retaliation.” Id. at 720–721.
The scope of what constitutes “opposition” is broad, and its definition “carries its ordinary
meaning: ‘[t]o resist or antagonize … ; to contend against; to confront; resist; withstand.”
Crawford v Metropolitan Gov’t of Nashville & Davidson Cty, 555 US 271, 276 (2009)
(citation omitted); EEOC v New Breed Logistics, 783 F3d 1057, 1067 (6th Cir 2015). “There
is no qualification on who the individual doing the complaining may be or on who the party
to whom the complaint is made [may be].” New Breed Logistics, 783 F3d at 1068; Warren
v Ohio Dep’t of Pub Safety, No 00-3560 (6th Cir Oct 3, 2001) (unpublished). The
“opposition” clause covers conduct such as “complaining to anyone (management, unions,
other employees, or newspapers) about allegedly unlawful practices; refusing to obey an
order because the worker thinks it is unlawful under Title VII; and opposing unlawful acts
by persons other than the employer—e.g., former employers, union and co-workers.” New
Breed Logistics, 783 F3d at 1067; Brown v City of Franklin, No 10-5107 (6th Cir June 28,
2011) (unpublished); Barrett v Whirlpool Corp, 556 F3d 502, 516 (6th Cir 2009);
Howington v Quality Rest Concepts, LLC, No 08-5136 (6th Cir Oct 20, 2008)
(unpublished); Johnson; see also Soto-Feliciano v Villa Cofresi Hotels, Inc, 779 F3d 19 (1st
Cir 2015) (internal complaints to management constitute protected activity). Complaining
to a harassing supervisor about the unlawful harassment is likewise considered
“opposition” under Title VII and, thus, protected activity. New Breed Logistics, 783 F3d at
1067–1068. The manner of opposition must be reasonable, and the opposition must be
based on “a reasonable and good faith belief that the opposed practices were unlawful.”
Johnson, 215 F3d at 579–580. Thus, unlawful retaliation can be found even if the
employer’s conduct that is the subject of the employee’s opposition is ultimately
determined to be lawful. Id.
A plaintiff claiming to have opposed unlawful discrimination must prove that he or she
“took an ‘overt stand against suspected illegal discriminatory action’ to establish that she
engaged in protected activity.’” Blizzard v Marion Tech Coll, 698 F3d 275, 288 (6th Cir
2012), cert denied, 569 US 975 (2013). “In other words, an employee ‘may not invoke the
protections of the Act by making a vague charge of discrimination.’” Id. (quoting Fox v
Eagle Distrib Co, 510 F3d 587, 591 (6th Cir 2007).
Actions that constitute protected activity include a letter sent by the employee to the
employer objecting to an employer’s suspected violation of the at-issue employment law
and a warning by the employee that she would commence legal action under that law if the
employer did not comply with its remedial obligations. See Niswander, 529 F3d at 721; see
also Michael v Caterpillar Fin Servs Corp, 496 F3d 584 (6th Cir 2007) (internal complaint
of statutory violation constitutes protected activity); Doe v Kohn, Nast & Graf, PC, 862 F
Supp 1310 (ED Pa 1994) (threat to sue constitutes protected activity). Reporting suspected
discrimination to the antidiscrimination unit of the Department of Labor constitutes

protected activity. Soto-Feliciano, 779 F3d at 31.
The filing of an EEOC charge of discrimination is unquestionably an exercise of protected

activity. Thompson v North American Stainless, LP, 562 US 170, 173 (2011); Jacklyn v
Schering-Plough Healthcare Prods Sales Corp, 176 F3d 921, 930 (6th Cir 1999); Coleman
v Donahoe, 667 F3d 835, 841, 859 (7th Cir 2012) (holding that the filing of a charge of
discrimination is “the most obvious form of statutorily protected activity”); see also
Greengrass v International Monetary Sys, Ltd, 776 F3d 481, 485 (7th Cir 2015). Similarly,
requests for precomplaint counseling with a federal government employer made before
filing an EEOC charge constitute protected activity. Coleman, 667 F3d at 859–860.
However, whether the employee’s conduct constitutes protected activity is not always so cut
and dried. One common example is when an employee takes confidential information or
copies of documents from the employer to pursue an employment discrimination case.
When this occurs, employers will frequently claim that the taking of confidential
information or documents does not constitute protected activity or that the revelation of
the employee’s taking of the confidential information or documents constitutes after-
acquired evidence that would have resulted in the employee’s termination in any event. In
Niswander, the Sixth Circuit held that the taking of confidential information or copies of
confidential documents to assist in the pursuit of an employment discrimination claim can
constitute protected activity under the participation clause of Title VII. However, the
information or documents must reasonably support the underlying claim, or the employee
must reasonably believe that they did. Niswander, 529 F3d at 721–722. In Niswander,
plaintiff’s taking of confidential documents to give to her attorney were held to not
constitute protected activity under the participation clause because she admitted that she
did not believe that the documents were relevant to the underlying suit. Id.
The Niswander court went on to address the question of when the taking of confidential
information or documents can constitute protected activity under the opposition clause.
After considering cases from other circuits, the Niswander court adopted a balancing test
designed to harmonize the employer’s “legitimate and substantial interest” in keeping
certain records confidential with the employee’s “need for surreptitious copying and
dissemination of the documents.” Id. at 726. In determining whether the employee’s taking
of confidential information or documents should constitute protected activity under the
opposition clause, courts should consider the following factors: (1) how the documents
were obtained; (2) to whom the documents were produced; (3) the content of the
documents, both in terms of the need to keep the information confidential and its relevance
to the employee’s claim of unlawful conduct; (4) why the documents were produced,
including whether the production was in direct response to a discovery request; (5) the
scope of the employer’s privacy policy; and (6) the ability of the employee to preserve the
evidence in a way that does not violate the employer’s privacy policy. Id. In Niswander,
application of the above-listed factors were found to not support a finding of reasonable
opposition, again because the employee acknowledged that she did not believe the
documents she took were relevant to the underlying claim.
The expression of opposition can be too vague or unclear to constitute opposition and, thus,
“protected activity.” For example, a general complaint about “ethnocism” is too vague to
constitute protected activity. Booker v Brown & Williamson Tobacco Co, 879 F2d 1304,
1313 (6th Cir 1989). Conversely, a complaint by an employee that she was “treated
differently than younger employees,” that she received emotionally abusive and
intimidating treatment that younger employees did not receive, and that included reports
of ageist comments are sufficient to constitute protected activity under the opposition
clause. Blizzard, 698 F3d at 288–289.
Furthermore, within the context of reporting suspected sexual harassment, the suspected
discriminatory conduct or communication does not need to rise to the level of severe or
pervasive for an internal complaint about the conduct or communication to be considered
protected activity. Greene v MPW Indus Servs, Inc, No 06-647 (WD Pa Oct 4, 2006).
c. Employer Knowledge of the Protected Activity
§4.24 The employee is not required to provide direct evidence that the decision maker
knew of the protected activity and can prove such awareness by way of circumstantial
evidence. Hicks v SSP America, Inc, No 10-4156 (6th Cir Aug 3, 2012) (unpublished);
Mulhall v Ashcraft, 287 F3d 543, 552 (6th Cir 2002). Evidence suggesting that a charge of
discrimination was mailed to the employer, and that the employer had mere access to the
mail, is circumstantial evidence that the employer received notice of the protected activity
sufficient to defeat a motion for summary judgment. The decision maker’s knowledge of an
intent on the part of an employee to file a charge of discrimination also constitutes
circumstantial evidence of knowledge. The fact that the decision maker denies ever
knowing of the charge, and that the employer denies receiving the charge, is of no
consequence. Hicks.
Knowledge of the protected activity by one individual within the organization, interacting
with the decision maker, constitutes sufficient circumstantial evidence of knowledge of the
protected activity on the part of the decision maker. Hicks; Mulhall, 287 F3d at 553.
d. Materially Adverse Employment Action
§4.25 The standard for what constitutes an adverse employment action is more lenient
within the context of a retaliation claim than in a disparate-treatment claim. As a result, the
scope of employer actions (or inactions) that constitute adverse employment action is far
broader in retaliation claims. In disparate-treatment cases, adverse employment action is
defined as “a materially adverse change in the terms and conditions of a plaintiff’s
employment.” Spees v James Marine, Inc, 617 F3d 380, 391 (6th Cir 2010).
However, an employer’s conduct toward the employee need not affect the terms and
conditions of employment to be considered an adverse employment action within the
context of a retaliation case. Burlington N & Santa Fe Ry v White, 548 US 53, 64 (2006).
The test is whether a “reasonable employee would have found the challenged action
materially adverse, ‘which in this context means it well might have dissuaded a reasonable
worker’” from engaging in the protected activity. Id. at 68. What constitutes a materially
adverse employment action is to be measured from the perspective of a “reasonable
employee” under the circumstances presented. Id. at 68–69. Mere trivial harms, “petty
slights, minor annoyances, and simple lack of good manners” will not satisfy this standard.
Id. at 68.
Since Burlington Northern, courts have taken a relatively expansive view of what
constitutes a materially adverse employment action in retaliation cases. Suspensions and
terminations constitute adverse employment actions, even if they are subsequently
withdrawn by the employer and back pay is provided. Burlington Northern, 548 US at 71–
72. Posttermination acts of retaliation that have a nexus to employment, such as acts that
impinge on the employee’s future employment prospects, are actionable under Title VII as
unlawful retaliation. Greengrass v International Monetary Sys, Ltd, 776 F3d 481, 485–
486 (7th Cir 2015). The public disclosure of the existence of a former employee’s claim
(such as a filing with the Securities and Exchange Commission), which specifically
identifies the employee by name as the filer and designates the claim as “meritless,”
constitutes a material adverse employment action for purposes of a retaliation claim.
Greengrass, 776 F3d at 485–486 (7th Cir 2015). A loss of $850 in wages and $50 in added
travel costs satisfies the Burlington Northern standard. Gordon v United States Capitol
Police, 778 F3d 158, 163 (DC Cir 2015). Such a loss constituted three days’ lost pay, which
the court deemed more than de minimis or trivial to the employee. Id. Threatening to level
serious accusations against an employee and to oppose a claim for unemployment benefits
if the employee pursues his or her underlying Title VII discrimination claim constitutes an
adverse employment action for purposes of a Title VII retaliation claim. Williams v WD
Sports, NM, Inc, 497 F3d 1079, 1090–1091 (10th Cir 2007). Placing an employee on a
performance improvement plan that contains even the threat of possible termination
constitutes an adverse employment action within the retaliation context. Smith v CA, Inc,
No 8:07-cv-78-T-30TBM (MD Fla Dec 30, 2008). However, a negative employment
evaluation that does not cause a significant impact on the employee’s wages or professional
advancement does not constitute an adverse action, even in a retaliation context. Blizzard v
Marion Tech Coll, 698 F3d 275, 290 (6th Cir 2012), cert denied, 569 US 975 (2013).
e. Causation
§4.26 To show a causal connection, a plaintiff must produce sufficient evidence from
which an inference can be drawn that the protected activity motivated the adverse
employment action. Allen v Michigan Dep’t of Corr, 165 F3d 405, 413 (6th Cir 1999). The
employee must show that the protected activity was a but-for cause of the adverse
employment action, which means that the adverse employment action would not have
occurred without the protected activity. University of Texas Southwestern Med Ctr v
Nassar, 570 US 338 (2013). “[A]ll the plaintiff must do is put forth some credible evidence
that enables the court to deduce that there is a causal connection between the retaliatory
action and the protected activity.” Dixon v Gonzales, 481 F3d 324, 333 (6th Cir 2007). This
inference is commonly shown with evidence demonstrating that another, similarly situated
individual who did not engage in protected activity was treated in a more favorable manner
by the employer or that the adverse employment action occurred within a short time after
the employee engaged in the protected activity. Allen, 165 F3d at 413.
There are other ways to satisfy the causation prong of the prima facie case. Evidence that
the defendant either altered documents or concealed evidence may satisfy the causation
element of the prima facie case. Shields v Martin Marietta Techs, No 95-2112 (ED La May
19, 1997); Jordan v Wilson, 649 F Supp 1038, 1061 (MD Ala 1986), rev’d on other grounds,
851 F2d 1290 (11th Cir 1988). When the termination occurs close in time to the protected
activity, the employer provides conflicting stories as to who made the decision to terminate,
and there is a delay between the alleged infraction forming the basis for the proffered
nondiscriminatory reason and the termination, the causation element is satisfied. Sabbrese
v Lowe’s Home Ctrs, 320 F Supp 2d 311, 324 (WD Pa 2004). Evidence suggesting that
defendant created an unmanageable workload for plaintiff in an effort to ensure that she
could not accomplish the tasks set out for her constituted sufficient evidence of a causal
connection between the adverse employment action and the protected activity in Brown v
Lexington-Fayette Cty, No 10-5846 (6th Cir June 12, 2012) (unpublished). See also
§§4.28–4.32 for discussion of similarly situated employees and causation.
In some cases, employers will claim that the decision to take the adverse employment
action preceded the protected activity, so that causation cannot be established. When the
proffered reasons for the adverse employment action are known to the employer before the
plaintiff engaged in the protected activity, the employer does not take adverse action
against the employee before the protected activity, and the employer takes action against
the employee only after he or she engages in the protected activity, an inference exists that
the decision to take the adverse action against the employee did not predate the protected
activity, and summary judgment must be denied. Moorer v Baptist Mem’l Health Care Sys,
398 F3d 469, 489–490 (6th Cir 2005); Arban v West Publ’g Corp, 345 F3d 390, 401–402
(6th Cir 2003); Chester v Quadco Rehab Ctr, 484 F Supp 2d 735, 741 (ND Ohio 2007).
Similarly, when an employer produces evidence that the decision to terminate was made
before the plaintiff engaged in the protected activity, causation is nonetheless established if
the adverse employment action taken is unlike the action previously contemplated or does
not occur within the time frame previously laid out. Montell v Diversified Clinical Servs,
757 F3d 497, 507 (6th Cir 2014).
5. Close Temporal Proximity
§4.27 When an adverse employment action is taken against the employee in close
proximity to the protected activity, the temporal proximity alone is sufficient to establish
the necessary causal link. Montell v Diversified Clinical Servs, 757 F3d 497, 505–508 (6th
Cir 2014); Lindsay v Yates, 578 F3d 407, 418–419 (6th Cir 2009); Mickey v Zeidler Tool &
Die Co, 516 F3d 516 (6th Cir 2008); Asmo v Keane, Inc, 471 F3d 588, 594 (6th Cir 2006).
Usually, a temporal proximity of three months or less will alone suffice to establish the
causation element of the prima facie case. Herrera v Churchill McGee, LLC, No 13-5211
(6th Cir Nov 21, 2013) (unpublished) (one-month proximity alone sufficient); Mickey, 516
F3d at 525–526 (same-day proximity alone sufficient); Goller v Ohio Dep’t of Rehab &
Corr, No 07-3750 (6th Cir July 18, 2008) (unpublished) (two-month proximity alone
sufficient); Bryson v Regis Corp, 498 F3d 561, 571 (6th Cir 2007) (same-day proximity
alone sufficient); Asmo (two-month proximity alone sufficient); Singfield v Akron Metro
Hous Auth, 389 F3d 555, 563 (6th Cir 2004) (more than three-month proximity alone
sufficient); DiCarlo v Potter, 358 F3d 408, 421–22 (6th Cir 2004) (21 days sufficient);
Shefferly v Health All Plan of Michigan, No 02-2488 (6th Cir Apr 5, 2004) (unpublished)
(about three weeks).
The sufficiency of close timing alone to satisfy the causation prong appears to have survived
the Supreme Court’s decision in University of Texas Southwestern Med Ctr v Nassar, 570
US 338 (2013), in which the high court held that but-for causation applies to retaliation
claims brought under Title VII. Zann Kwan v Andalex Group, LLC, 737 F3d 834, 845 (2d
Cir 2013) (holding that Supreme Court decision in Nassar did not affect rule of law that
close timing is alone sufficient to establish causation prong of prima facie case of
retaliation). In EEOC v New Breed Logistics, 783 F3d 1057 (6th Cir 2015), the employer
claimed that, as a result of the holding in Nassar that Title VII retaliation claims are subject
to the but-for causation standard, close timing between the protected activity and the at-
issue employment action is no longer alone sufficient to satisfy the causation prong of the
prima facie case. On the issue of causation, the trial court instructed the jury that “[c]lose
timing between the claimant’s protected activity and an adverse action against the claimant
may provide the causal connection needed to make out a prima facie case of retaliation.”
New Breed Logistics, 793 F3d at 1076. The Sixth Circuit Court of Appeals held that this
instruction, against the backdrop of an additional charge to the jury that the EEOC had to
establish that the at-issue employment actions were “because of” the protected activity, did
not misstate the law, even after the Supreme Court’s holding in Nassar. New Breed
Logistics at 1076–1077.
However, “where some time elapses between when the employer learns of a protected
activity and the subsequent adverse employment action, the employee must couple
temporal proximity with other evidence of retaliatory conduct to establish causality.”
Mickey, 516 F3d at 525. Close timing, along with heightened scrutiny of the plaintiff by the
employer, satisfies the causation element of the prima facie case. Upshaw v Ford Motor
Co, 576 F3d 576, 581, 588–589 (6th Cir 2009); Hamilton v GE, 556 F3d 428, 435 (6th Cir
2009). Close timing, along with an adverse change in attitude toward plaintiff soon after
she engaged in protected activity, constituted evidence of causation in Carver v Waste
Connections of Tennessee, Inc, No 3:04-CV-263 (ED Tenn Feb 2, 2006). See also Benson v
Carson City Hosp, No 06-13145-BC (ED Mich Oct 9, 2007). Close timing, along with
evidence that the decision maker had no problem with the employee’s performance or
conduct before the protected activity, establishes causation. New Breed Logistics, 783 F3d
at 1070.
A lack of close temporal proximity between the protected activity and the adverse action
does not categorically preclude a finding of causation. Sharp v Aker Plant Servs Group, No
14-5415 (6th Cir Jan 13, 2015). The passage of a significant amount of time between the
protected activity and the adverse employment action does not destroy causation,
particularly when, for example, the individual who retaliated against the plaintiff engaged
in the retaliatory conduct at the first opportunity he or she had to do so. Dixon v Gonzales,
481 F3d 324, 335 (6th Cir 2007); Porter v California Dep”t of Corr, 419 F3d 885, 887–889
(9th Cir 2005); see also Ford v GMC, 305 F3d 545, 554–555 (6th Cir 2002). The need to
look past a six-month interval “is especially true in the context of a reinstatement case, in
which the time lapse between the protected activity and the denial of reinstatement is likely
to be lengthier than in a typical employment discrimination case.” Dixon, 481 F3d at 335.
6. Similarly Situated Employees
a. When Is an Employee Similarly Situated to the Plaintiff?
§4.28 Another way that the causation element of the prima facie case can be established
is through evidence that a similarly situated employee who did not engage in the protected
activity was treated more favorably than the plaintiff. Nguyen v City of Cleveland, 229 F3d
559, 563 (6th Cir 2000). For a comparator employee to be similarly situated to the plaintiff,
he or she need only be similar to the plaintiff in the “relevant” respects. Chattman v Toho
Tenax America, Inc, 686 F3d 339, 348 (6th Cir 2012); Mickey v Zeidler Tool & Die Co, 516
F3d 516, 522 (6th Cir 2008); Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344 (6th
Cir 1998). An employee “need not demonstrate an exact correlation” with the comparator
employee. Chattman, 686 F3d at 348; Ercegovich, 154 F3d at 352. Courts do not require
the nonprotected employee to be identically situated to the plaintiff in every single aspect of
his or her employment. Id. The plaintiff need only put forth a comparator, “not clones.”
Coleman v Donahoe, 667 F3d 835, 846 (7th Cir 2012); see also Austin v Long, 779 F3d
522, 525 (8th Cir 2015) (holding “similarly situated coworker inquiry is a search for a
substantially similar employee, not for a clone”). “[P]recise equivalence between employees
is not the ultimate question.” Coleman, 667 F3d at 846 (citing McDonald v Santa Fe Trail
Transp Co, 427 US 273, 283 n11 (1976)). Instead, the primary focus is on the similarity of
the conduct of the plaintiff and that of the employee with whom he or she is to be
compared. The inquiry is intended to be a “flexible, common-sense” evaluation of the
relevant factors. Coleman, 667 F3d at 841, 846. The factors courts consider are (1) whether
the employees share the same “ultimate decision-maker,” McMillan v Castro, 405 F3d 405,
414 (6th Cir 2005); Seay v TVA, 339 F3d 454, 459 (6th Cir 2003); (2) whether the
employees are subject to the same standards, Ercegovich, 154 F3d at 352; and (3) whether
the employees engaged in conduct that was similar in kind and severity. Clayton v Meijer,
Inc, 281 F3d 605, 611 (6th Cir 2002). However, “[w]hich aspects are to be considered
depends on the circumstances of the individual case.” Chattman, 686 F3d at 348; see also
Coleman, 667 F3d at 847. It is “not a ‘magic formula’ … and the similarly-situated inquiry
should not devolve into a mechanical, ‘one-to-one mapping between employees.’” Id.
Whether a comparator employee is similarly situated is generally a question of fact for the
jury. Bobo v UPS, 665 F3d 741, 757 (6th Cir 2012); see also Coleman, 667 F3d at 846–847.
When, due to the uniqueness of the plaintiff’s position within the organization, there is an
insufficient pool of potentially comparable employees to consider for purposes of the usual
similarly situated analysis, courts should relax the requirement, look more broadly for
comparator employees, and be more lenient in allowing comparisons. Simpson v Office of
the Chief Judge, 559 F3d 706, 719 (7th Cir 2009); McNabola v Chicago Transit Auth, 10
F3d 501, 514 (7th Cir 1993); Wei v Chicago State Univ, No 01 C 7509 (ND Ill Aug 28,
2003).
b. Same Supervisor
§4.29 “When the same supervisor treats an otherwise equivalent employee better, one
can often reasonably infer that an unlawful animus was at play.” Coleman v Donahoe, 667
F3d 835, 847 (7th Cir 2012). However, it is not always necessary for plaintiff to show that
the comparator had the same supervisor. White v Duke Energy Kentucky, Inc, No 14-3215
(6th Cir Mar 2, 2015) (unpublished). The focus is not on the identity of the comparator’s
direct supervisor but rather on the identity of the decision maker, who is the person
“responsible for the contested decision.” Coleman, 667 F3d at 848.
Similarly, the employer, in an effort to inject irrelevant comparator employees into the
analysis, cannot artificially expand the group of comparators to include other employees
who were under the supervision of a different decision maker who was not involved in the
decision affecting the plaintiff. Rachells v Cingular Wireless Employee Servs, 732 F3d 652,
662 (6th Cir 2013).
c. Comparing Managers to Nonmanagement Employees
§4.30 The employee’s status as a manager does not necessarily mean that his or her
conduct can be measured only against other members of management for purposes of
finding a comparator employee. White v Duke Energy Kentucky, Inc, No 14-3215 (6th Cir
Mar 2, 2015) (unpublished). When considering whether a nonmanagement employee can
be used as a comparator by a management employee, courts can consider (1) whether the
company’s policies apply with equal force to management and nonmanagement employees
alike; (2) whether the plaintiff possessed training or responsibilities that would make his or
her management status relevant to an inquiry as to whether he or she could properly be
compared to nonmanagement employees; and (3) whether nonmanagement employees
enjoyed additional protections or opportunities for recourse in the wake of internal
investigations. Id. If the rule that was violated does not make a meaningful distinction
between its application to management employees as opposed to nonmanagement
employees, a manager can use nonmanagement employees as comparators. Id.
d. Same Standards of Conduct
§4.31 The employees being compared need not have the same job titles or job duties.
Coleman v Donahoe, 667 F3d 835, 848–849 (7th Cir 2012). The dissimilarities in job
positions or duties is “irrelevant” within the context of a case involving differential
discipline. Id. at 848. How the employer classifies the employees is irrelevant; rather, the
relevant inquiry is whether the employer subjected the comparator engaging in similarly
serious conduct to more favorable treatment. Id. This is especially true when the
comparator and plaintiff allegedly violated a workplace rule that applies to all employees.
Id. at 849.
e. Conduct of Comparable Seriousness
§4.32 In the disciplinary context, the plaintiff is required to show that the comparator
engaged not necessarily in the same conduct but rather in conduct of “comparable
seriousness.” Wright v Murray Guard, Inc, 455 F3d 702, 710 (6th Cir 2006); see also
Coleman v Donahoe, 667 F3d 835, 850–851 (7th Cir 2012). “[P]recise equivalence of
culpability between employees is not the ultimate question.” Id. at 850. Nor do the two
employees have to break the at-issue work rule in the same manner. Id. at 851. However,
“where a proposed comparator violated the same rule as the plaintiff in an equivalent or
more serious manner, courts should not demand strict factual parallels.” Id. A coworker is
similarly situated in all relevant respects if his or her conduct is “comparable to or ‘more
serious than that of the plaintiff.’” Austin v Long, 779 F3d 522, 525 (8th Cir 2015).
At the summary judgment stage, “the employer cannot defeat a plaintiff’s prima facie case
of discrimination on the theory that it applied its ‘no tolerance’ policy on [the at-issue
conduct], while dismissing dangerous acts of others as mere ‘horseplay.’” Coleman, 667
F3d at 851
The focus is instead on the “severity and commonality” of the comparator’s conduct.
Chattman v Toho Tenax America, Inc, 686 F3d 339, 350 (6th Cir 2012). This involves an
inquiry into whether the comparator’s conduct was “any less hazardous” than that of the
plaintiff and whether the employer knew of the comparator’s conduct. Id. Factors that can
be considered are whether the plaintiff and the comparator had the same supervisor,
whether they were subject to the same standards, and whether they engaged in the same
conduct without such differentiating or mitigating circumstances that would distinguish
their conduct or the employer’s treatment of them for it. Wright, 455 F3d at 710. However,
when such factors are not relevant, the court should make “an independent determination
as to the relevancy of a particular aspect of the plaintiff’s employment status and that of the
proposed comparator employee.” Wright, 455 F3d at 710.
Footnote
1 Many thanks to Howard & Howard Attorneys, PLLC, summer associate Kevin Sanker for
his assistance in preparing this chapter.
Forms and Exhibits
Exhibit 4.01 List of Federal Whistleblower Provisions
© 2019 by The Institute of Continuing Legal Education

Employment Litigation in Michigan - Whistleblower Claims

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5/19/2019 Employment Litigation in Michigan

II. Whistleblowers’ Protection Act

A. Purpose of the WPA; Who Is Protected

An employer shall not discharge, threaten, or otherwise discriminate against

C. Elements and Burden of Proof

1. Prima Facie Case

2. Plaintiff Engaged in Protected Activities

b. Reporting to a Public Body

c. About to Report Violations

d. Request by Public Body to Participate in Investigation

3. Employee Suffered Adverse Employment Action

246. Such adverse employment actions include termination, threats, or other

4. Causal Connection Between Protected Activity and Adverse Action

b. More Than Temporal Connection Between Protected Conduct and Adverse

c. Employer Must Know or Believe That the Employee Is Engaged in Protected

§4.12 An employer must know of a reported violation by the employee to establish a

G. Collective Bargaining and Arbitration Agreements

A. Prohibitions Against Retaliation

§4.18 In addition to providing substantive proscriptions against discrimination on the

B. Methods of Proving Unlawful Retaliation

§4.19 A claim of retaliation can be established with either direct or circumstantial

to produce admissible evidence to support a finding that it had a legitimate, nonretaliatory

4. Prima Facie Case

§4.23 Most statutory antiretaliation provisions prohibit employers from retaliating

The “participation” clause provides “exceptionally broad protections” that extend to

discrimination to the antidiscrimination unit of the Department of Labor constitutes

The filing of an EEOC charge of discrimination is unquestionably an exercise of protected

c. Employer Knowledge of the Protected Activity

d. Materially Adverse Employment Action

5. Close Temporal Proximity

6. Similarly Situated Employees

a. When Is an Employee Similarly Situated to the Plaintiff?

c. Comparing Managers to Nonmanagement Employees

d. Same Standards of Conduct

e. Conduct of Comparable Seriousness

Forms and Exhibits

Exhibit 4.01 List of Federal Whistleblower Provisions

© 2019 by The Institute of Continuing Legal Education

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