Procrastination can be an employer’s best friend when it comes to employment discrimination lawsuits. This is especially true for claims under Michigan’s Whistleblower Protection Act (WPA). This is because Michigan’s WPA has one of the shortest statutes of limitations (i.e., the time in which a lawsuit must be filed) under any employment-related law. That limitation period is 90 days. But figuring out when that 90 day limitation period begins to run is not always straightforward. Nonetheless, Courts are not going to be sympathetic if that limitation period is not followed. This issue recently played out in a Michigan lawsuit asserting a claim under Michigan’s WPA.
Overview of Michigan’s Whistleblower Protection Act
Michigan’s WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of law, regulation, or rule to a public body. An action for relief under the WPA must be promptly filed “within 90 days after the occurrence of the alleged violation of this act.” MCL 15.363. Courts applying this limitation construe it to mean that an action under for violation of the WPA accrues when the retaliatory or discriminatory acts occur. In other words, the actual “occurrence” of the discrimination or retaliation is the trigger for when the clock begins to run on a WPA claim. And this can create harsh results for employees who wait too long to pursue a WPA claim.
Whistleblower Protection Claim Must be Timely Filed
For example, in Bradford v. MGH Family Health Ctr. (1/12/2016), a panel of the Michigan Court of Appeals recently held that an individual waited too long to file her action under Michigan’s Whistleblower Protection Act (WPA) because she failed to file within 90 days of the alleged violation. Accordingly, the Court granted the defendant employer’s motion to dismiss.
As to the case, the plaintiff filed her complaint on 2/19/2014. But she claimed that she engaged in protected activity and was suspended from employment on 10/1/13. She further alleged that she was notified on 10/14/13 that her contract which was to expire on 12/1/13, would not be renewed. Plaintiff unsuccessfully argued that she was discharged on December 1, 2013, because that was the date her salary and benefits ended. She further argued that this December 1 date was when her economic damages began.
However, the court rejected her argument that not renewing her contract was a “discharge” prohibited by the WPA. It also rejected the argument that her cause of action should be considered to have accrued when her damages accrued. In the words of the Court:
In this case, plaintiff was suspended on October 10, 2013, and defendants decided and notified plaintiff her contract would not be renewed on October 14, 2013. These acts occurred more than 90 days before plaintiff filed her complaint.
Accordingly, the Court affirmed the trial court’s dismissal of the WPA claim because it was not timely filed within the 90 days provided for under the statute.
Winning an employment discrimination lawsuit can be hard. But it is impossible to win if you are barred from even filing the lawsuit because it is untimely. For this reason, it is important for both employers and employees to understand what event or events trigger a lawsuit and when that lawsuit must be filed.
For more information about Michigan Whistleblower Protection claims, as well what steps employers need to take to avoid violating the statute, contact employment attorney Jason Shinn.