Protected Activity Under the Whistleblowers’ Protection Act Encompasses Reporting Violations of Common Law.

BRIAN J GRABER LLC is a Whistleblowers’ Protection Act lawyer representing Michigan employees who are retaliated against by their employers for whistleblowing in violation of the Whistleblowers’ Protection Act. Protected activity under the Whistleblowers’ Protection Act encompasses reporting violations of common law. In Stefanski v. Saginaw County 911 Communications Center Authority, SC 166663 at *1-2 (Mich. Apr. 14, 2025) the Michigan Supreme Court held that the term “law” as used in the statutory phrase “a violation or suspected violation of law” encompasses the common law under the Whistleblowers’ Protection Act, (WPA), MCL 15.362.

The Whistleblowers’ Protection Act states as follows:

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employer’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 the 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 has requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.

Whistleblowers’ Protection Act, (WPA), MCL 15.362.

In Stefanski, SC 166663 at *9 to establish a prima facie case under the WPA a plaintiff need only show the following:

1. That he or she was engaged in protected activity as defined by the Act;
2. He or she suffered an adverse employment action; and
3. a causal connection exists between the protected activity and the adverse action.

“Protected activity” includes:

(1) reporting to a public body a violation of a law, regulation, or rule;

(2) being about to report such a violation to a public body; or

(3) being asked by a public body to praticipate in an investigation.

Stefanski v. Saginaw County 911 Communications Center Authority, SC 166663 at *9 (Mich. Apr. 14, 2025).

If you believe your employer retaliated against you in violation of the Whistleblowers’ Protection Act for whistleblowing activity, contact BRIAN J GRABER LLC, a Whistleblowers’ Protection Act lawyer, for a free confidential consultation at (269) 230-6054 or by email.

Facts of the Case

In Stefanski, SC 166663 at *2-3, July 5, 2021, a supervisor codes a 911 call reporting three gunshots and a woman screaming as “1010J” indicating shots fired. According to the plaintiff, emergency medical services are not dispatched when a call is coded this way, so emergency medical services were not sent to the scene after the initial call. Id. at *3. About an hour later, a different employee answered another call from the caller reporting that a woman was lying on her porch, she did not know if the woman was breathing, and the police had not arrived. Id. The call taker yelled to the dispatcher who was overseeing the City’s law-enforcement radio and asked for an update on the shooting. Id. The dispatcher answers that she did not have a shooting on Burnham Street, as only a shots-fired incident. Emergency medical services were then sent to the scene. When emergency medical services arrived the woman who had been shot was in full cardiac arrest, and she died shortly thereafter from her injuries. Id.

The plaintiff believes the Burnham call had been improperly coded. Id. The plaintiff believes the call should have been coded as a “40j,” which would have indicated someone was shot and required that emergency medical services be dispatched to the scene. The plaintiff and others pressured a supervisor to review the audio recording of the call. Id. The supervisor reviewed the audio recording of the call and stated he did not hear anything out of the ordinary. Id. When the plaintiff questions the supervisor’s conclusion, the supervisor allegedly becomes angry and tells the plaintiff and the others to “let it go.” Id. After an internal investigation, it was determined that the supervisor call taker’s actions were not negligent and that his coding of the call was a “judgment call.” Id. at 4. The plaintiff disagreed with this determination suspecting that the supervisors were covering for each other. Id.

During the last week of July of 2021, the plaintiff expressed his views to the director of Saginaw County 911. The Plaintiff testified that during this conversation he questioned how they could let the police “take the fall” for this. Id. The plaintiff told the director that the call was unambiguous and “there’s absolutely no way that you can get that there was not somebody shot on Burnham Street.” Id. The plaintiff asked the director what was going to happen with the supervisor call taker. Id. In response, the director reiterated that this was a judgment call and that he would not question the supervisor call taker’s decision. Id.

In the weeks that followed the plaintiff missed several days of work. Id. The plaintiff received a Level 1 NSA notice which is sent after an employee accrues five NSAs. Id. On August 16, 2021, the plaintiff received a Level 2 NSA notice which is sent after an employee accrues seven NSAs. Id.

After getting the second notice, the plaintiff initiated another conversation with the director. The Plaintiff testified he told the director that he had increased stress and anxiety because of the Burnham call, the supervisor call taker’s gross negligence, and how this matter had been dismissed. Id. at *5. During the conversation, the plaintiff told the director that part of his issue was that if the supervisor call taker was not a supervisor, but instead a regular employee like the plaintiff, then the supervisor call taker would have been subject to discipline in some way, e.g., a suspension, a write-up, termination, or retaining. Id. The plaintiff told the director that he viewed the supervisors as a “boys club” and that the handling of the Burnham call was causing a moral issue. Id. The Plaintiff told the director he “felt the urge to go to the Board with the issue” because it was not being handled internally. The plaintiff claims that the director told him that he did not want to talk about the issue and the conversation was over. Id.

Subsequently, the plaintiff alleges he was treated differently at work. Id. The plaintiff claims he was “shafted,” was never called into the director’s office unless it was to discuss the NSA policy, was no longer greeted by supervisors, received “crappy” assignments, and was given assignments he did not want. Id.

In October, the plaintiff went on a medical leave of absence and was given a return to work date of November 10. Id. On November 10 the plaintiff was still sick so he called out for November 10 and 11 shifts. Id. On November 12, the director called the plaintiff and told him to not report for his shift. Id. On November 15, the director called the plaintiff and informed him that the call was a disciplinary hearing and that all potential discipline was “on the table,” including a write-up, suspension, and termination. Id. They discussed the plaintiff’s absences and photographs that were posted on the plaintiff’s social media on the days that he called off work. Id. at 5-6. On November 18, the plaintiff received a letter indicating he was being placed on a 90-day unpaid suspension because of his NSAs. Id. at 6.

The plaintiff believed that the reason for his suspension was pretextual and resigned and filed suit alleging that in violation of WPA, MCL 15.362, the defendant constructively discharged him in retaliation for his report to the director that the supervisor call taker’s actions constituted gross negligence and this violation of the common law was a violation of Michigan law under the WPA. Id. The defendant moved for summary judgment arguing the plaintiff did not engage in activity protected by the WPA because gross negligence is not a violation of a law or regulation or rule promulgated pursuant to law and for other reasons. Id. The trial court granted the motion for summary judgment concluding that reporting an employee’s perceived negligence or gross negligence – a violation of common law – was not protected activity under the WPA. Id. The court of appeals held the plaintiff was not engaging in protected activity when he allegedly reported the call taker supervisor’s gross negligence.

Legal Issue Of Whether WPA Includes A Violation of Common Law

The Michigan Supreme Court defined the issue and held as follows:

At issue is whether a violation of the common law, including gross negligence, is a protected activity under MCL 15.362 and whether defendant is entitled to summary disposition on the basis that plaintiff did not engage in a protected activity under the WPA. We hold that the term “law” as used in the statutory phrase “a violation or suspected violation of a law” encompasses the common law.

Stefanski v. Saginaw County 911 Communications Center Authority, SC 166663 at *1-2 (Mich. Apr. 14, 2025.

The Michigan Supreme Court found that the WPA does not define “law,” and turned to the dictionary definitions to ascertain the word’s plain meaning. Id. at 10. The Court concluded that “law,” when given its plain meaning as found in the lay dictionary, includes the common law. Id. The court held that even if “law” is considered a term of art, the common law is also included in the legal meaning of law citing to Black’s Law Dictionary (5th ed). Id. The Michigan Supreme Court found as follows:

In sum, the word “law” as used in MCL 15.362 encompasses the common law, when understood as a term or art or in its ordinary sense. This interpretation aligns with the WPA’s broader purpose of public protection, which is achieved ‘by protecting the whistleblowering employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.’ It does not say ‘statutory law’ or ‘constitutional law’; it merely states ‘a law.’ As explained, the plain and ordinary definition of ‘law’ encompasses the common law. The statutory interpretation of the WPA urged by [the defendant] would exclude a large subset of law, which, in turn, would undermine the WPA’s purpose. If we were to exclude the common law from MCL 15.362, we would be imposing a limiting barrier that is not found in the statute. Under this construction, employees would have to worry about whether the law they suspect has been violated is a part of tis excluded subset, theu eliminating their access to any protection under the WPA. Such a construction is impermissible and inconsistent with our mandate to liberally construe the WPA as a remedial statute. Therefore, we hold that the word ‘law,’ when given its plain and ordinary meaning, includes the common law. Accordingly we reverse the Court of Appeals’ judgment in that regard.

Stefanski v. Saginaw County 911 Communications Center Authority, SC 166663 at *11-13 (Mich. Apr. 14, 2025).

Issues To Be Decided On Remand

The Michigan Supreme Court remanded the case back to the court of appeals stating as follows:

Because an employee musrt report a violation of ‘a’ law and not just a violation of law, a plaintiff may not simply report a violation of law generally. Althrough the common law falls under the definition of ‘law,’ to recieve the WPA’s protections, a plaintiff must show that the reported violation was, in fact, a violation of ‘a’ law. Accordingly, resolving this issue requires the Court ot determinae whether gross negligence is, in and of itslef, ‘a’ law that can be, and was violated. This was not previously addressed by the Court of Appeals, so we remand this issue to the Court of Appeals for resolution. Our holding also does not resolve the issue of whether the [defendant] was entitled to summary disposition on the basis that [plaintiff] did not engage in a protected activity under the WPA. MCL 15.362 protects an employee who ‘reports or is about to report . . . a violation or a suspected violation of a law or regulation of rule promulaged pursuant to a law of this state . . . .’ Accordingly, to recieve protection under the WPA, a plaintiff must show that he, in fact, made a report or must show by clear and convincing evidence that he was about to make a report. The act does not protect employees who merely discuss rpeorting a violation without taking action. Neither the trial court nor the Court of Appeals determined whether Stefanski’s actions constituted a report or otherwise demonstrated that he was about to make a report under the WPA. . . . Because this issue was not previously addressed by the Court of Appeals, we also remand this issue to the Court of Appeals for it to resolve whether [the plaintiff] satisfied this requirement of his claim.

Stefanski v. Saginaw County 911 Communications Center Authority, SC 166663 at *13-15 (Mich. Apr. 14, 2025).

Whether or not the plaintiff in Stefanski will be successful on remand remains to be seen. Here is a link to the Michigan Supreme Court’s full decision in Stefanski v. Saginaw County 911 Communications Center Authority, SC 166663 (Mich. Apr. 14, 2025). This case makes clear that the term “law” under the WPA, MCL 15.362 now includes violations of common law.

Under the WPA, MCL 15.363(1) a person who alleges a violation of this act may bring a civil action for appropriate injunctive relief, or actual damages, or both within 90 days after the occurrence of the the alleged violation of this act. If you want to learn more about your rights to be free from retaliation for exercising your rights under the Michigan Whistleblowers’ Protection Act click here. Contact BRIAN J GRABER LLC a Whistleblowers’ Protection Act lawyer for a free confidential consultation at (269) 230-6054 or by email.