Former Employee’s Alleged Criminal Activities Relevant to Determine “Wage Earning Capacity” for Purposes of Assessing Entitlement to Workers Compensation Benefits

In a case I brought to the Michigan Supreme Court, which remanded in Omian v Chrysler, 495 Mich. 859 (2013), to the Court of Appeals for consideration of my appeal, the Michigan Court of Appeals has now reversed the decision I originally appealed.  In Omian v. Chrysler.COA.Published, the Court of Appeals agreed that evidence of a former employee’s ability to engage in a financially lucrative criminal enterprise generally allows consideration of that employee’s ability to “continue to earn wages” despite his or her claim that a work-related injury entitles him to wage-loss benefits.  I argued that an ability to earn wages, any wages, even those gained through nefarious criminal activities, should be admissible to demonstrate that the claimant is not entitled to be paid wage-loss benefits based on a claimed disabling injury – an injury he or she claims is preventing him from earning wages in other legal and gainful employment.

Although the Court did not agree with all of my arguments, it reversed the case on the main principal espoused and directs the administrative tribunal to consider the evidence.


Employee’s Reporting of Potential Future Violation of Law, Regulation or Rule Sufficient to Trigger “Protected Activity” Element in Whistleblower’s Protection Act Claim

In Pace v. Jessica Edel-Harrelson, et al, issued on February 24, 2015, the Michigan Court of Appeals addressed a Whistleblowers Protection Act claim.

There are two remarkable points to the case.  The first is that the COA panel (Shapiro, Gleicher and Roynayne-Krause) holds that reporting a suspected future violation of a regulation, law or rule is sufficient to trigger the protected activity element of the WPA. 

The second aspect that is interesting is the court addresses the causation analysis under the WPA and, particularly, rejects the defendant employer’s claim that any reporting of a violation by the plaintiff was merely temporally related to the incidents which the defendant-employer claims justified the plaintiff’s termination.

 In the end, the Court of Appeals here returns the WPA claim to the trial court because questions of fact remained over whether there was ever any planned future violation of a rule (misappropriation of the employer’s funds by another employee), and whether plaintiff actually engaged in the conduct for which she was allegedly terminated (threatening and intimidating a co-employee), and whether the plaintiff could prove causation.


Supreme Court Affirms Important Principle Regarding What Truly Constitutes a “Genuine” and Therefore “Material” Question of Fact Sufficient to Survive a Summary Motion for Judgment

In Fuhr v. Trinity Health al., Supreme Court No. 147158, the Michigan Supreme Court peremptorily reversed the Court of Appeals decision to affirm denial of summary judgment to the defendants (hospital) in a Whistleblower’s Protection Act (WPA) lawsuit filed by a former employee.  The plaintiff alleged he was terminated because of a call he placed in mid-April 2010 to the office of the U.S. Attorney lodging a complaint about potential theft and/or overbilling by a vendor with respect to inventory in the hospital’s surgery department.

Plaintiff testified at his deposition to a conversation he had during his termination in which he was told he was being terminated because of the call he placed to the U.S. attorney’s office.  This formed the basis of plaintiff’s cause of action under the WPA.  However, the record established plaintiff was made aware of his eventual termination before the call he placed, and, moreover, that the reason for plaintiff’s firing had to do with performance issues and complaints about perceived favoritism.  Thus, the plaintiff’s deposition, which was based on the hearsay statement of the employer’s representative was self-serving, and, in any event occurred well after he was terminated.  E-mail correspondence from plaintiff to his employer upon his termination also demonstrated plaintiff had inquired about the reason for his termination, and it made no mention of the call to the U.S. attorney.

The trial court denied the employer’s motion for summary disposition, finding the plaintiff’s deposition testimony (which was unsupported by any other record evidence) was sufficient to withstand summary judgment and bring the case to a jury.

The Court of Appeals affirmed in a 2-1 decision:  Fuhr v. Trinity Health.COA.Opn.  In dissent, Judge Talbot argued plaintiff’s self-serving affidavit was blatantly contradicted by the record to an extent that no reasonable juror could believe it.  Therefore, Judge Talbot urged the denial of summary disposition was error.

Citing the U.S. Supreme Court’s decision in a Fourth Amendment case, Scott v. Harris, 550 U.S. 372 (2007), which lays out the standard of review and disposition for summary judgment motions under Federal Rule of Civil Procedure 56(c) in a 42 U.S.C. section 1983 excessive force lawsuit brought against the government, Judge Talbot noted the Supreme Court stated:  “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary disposition.”  Judge Talbot continued:  Under those circumstances, a “genuine” issue of material fact simply does not exist.  Slip Op. at 1, Judge Talbot, dissenting.

Judge Talbot goes over the facts of the case and demonstrates that plaintiff never averred he was terminated after he contacted the U.S. attorney’s office until his deposition, at which he recounted the conversation he had with the employer, which was based on hearsay statements of the employer’s representative.  Moreover, plaintiff had e-mailed his employer after his termination stating he had not been given a reason for his termination.

The Supreme Court, by peremptory order with no dissent, reverses the Court of Appeals opinion and adopts Judge Talbot’s dissent. Fuhr v. Trinity Health Corporation et al.SC.Order

 This order is binding precedent for future cases.  More importantly, however, it establishes an important affirmation of the standard of review and the means by which opposing affidavits, deposition testimony, and other “evidence” is to be measured against a record that points to a factual bases for the underlying events in a lawsuit other than those alleged in the plaintiff’s complaint.  

It is noteworthy, as well, that Judge Talbot cites Scott v. Harris, the Supreme Court’s seminal case addressing the summary judgment standard applicable in excessive force cases brought against law enforcement officers under 42 U.S.C. section 1983.  All that is required for summary judgment is a record that demonstrates law enforcement officers acted in an objectively reasonable manner.  This determination cannot be made from the perspective of hindsight, but rather with reference to the facts and  circumstances surrounding the officer at the time he or she made the decision to act as he or she did.  Thus, where a record establishes that the actions and conduct engaged in by law enforcement officers was “objectively reasonable under the circumstances” and at the time the officers chose to act, the officer is entitled to qualified immunity, even if in hindsight his or actions may not have been justified.  

Unfortunately, many federal courts (and Court of Appeals panels) deem the priority of believing all of a plaintiff’s “allegations” as fact overrules the important principle established by the Supreme Court in Scott and in many cases addressing the rule 56(c) standard for summary judgment prior to Scott, such that these particular courts believe if a plaintiff contradicts by post-act affidavit or deposition the record facts as established by the testimony and other evidence, the case against the officer should go to the jury.

Fortunately, in Michigan, as established by the case I argued and won in the Supreme Court, Odom v. Wayne County, 482 Mich. 489 (2008), the good faith standard applicable to a law enforcement officer’s actions in the heat of the moment is judged from a “subjective” standard and that means self-serving affidavits and deposition testimony submitted to “change” the material facts are not, or should never be, sufficient to survive a motion for summary judgment on the basis of immunity under Michigan’s court rule MCR 2.116(C)(7) and (C)(10), the state parallel to Federal Rule of Civil Procedure 56(c).

Judge Talbot understands this principle well as he was on a panel of the Court of Appeals in another excessive force case in which the Court of Appeals reversed the trial court’s denial of summary disposition for a deputy sheriff I defended, who was accused of unnecessarily shooting the plaintiff during a long, violent struggle between the plaintiff and four deputies who were attempting to arrest him.  That case is Gentry v. Carmona, Unpublished Opinion of the Michigan Court of Appeals, dated October 11, 2011 (Docket No. 296580).  There, the Court of Appeals relied on the precedent established by the Odom decision I secured to hold the deputy was entitled to judgment as a matter of law.

Hopefully, the federal courts will one day understand this principle as well and apply it as easily as the Michigan Supreme Court does here.