The Whistleblowers’ Protection Act (WPA); Violation of the common law as a protected activity under MCL 15.362; Whether gross negligence is a violation of a law; Meaning of “a”; Common law claim for gross negligence; Xu v Gay; Whether plaintiff’s actions constituted reporting a claim of gross negligence under the WPA; “Report”

On remand from the Supreme Court, the court held “that gross negligence constitutes a violation of ‘a’ law and that” a question of fact existed as to whether plaintiff-Stefanski’s “conduct constituted a report under MCL 15.362.” Thus, it reversed summary disposition for defendant-former employer and remanded. The “Supreme Court held that reporting a violation of the common law is a protected activity under MCL 15.362.” It remanded the case to the court “‘for consideration of whether gross negligence is a violation of “a” law and whether plaintiff’s actions constituted a “report” under the WPA.’” The court first considered the meaning of the word “a.” It determined that, in “context, it is apparent that the use of the word ‘a’ in MCL 15.362 is meant to denote a reported violation of a singular law. And . . . the term ‘law’ includes violations of the common law. Under the common law, a plaintiff can bring a claim for gross negligence.” It then considered the definition of gross negligence provided by case law and various statutes. The court found it “apparent that a claim for gross negligence reflects a violation of a singular, well-defined principle of the common law. As a result, reporting gross negligence is a protected activity under the WPA.” Turning to the question of whether “Stefanski’s actions constituted reporting claim of gross negligence under the WPA[,]” the court had “little difficulty determining that a question of fact remains as to whether” he reported that a supervisor’s (B) “conduct amounted to gross negligence.” Considering the definition of the word report, the court found that Stefanski’s conversation with the county 911 director (W) could “be reasonably seen as charging [B] with unlawful conduct, specifically, with gross negligence related to his handling of” calls related to a shooting. “Regardless of whether Stefanski used the words ‘gross negligence’ when making his report, his allegations amounted to a charge that [B’s] actions were grossly negligent.” The court concluded that “viewed in the light most favorable to the nonmoving party, the record reflects that Stefanski reported an unknown violation of law to [W] in an attempt to remedy the situation or harm done by the violation.” His report that B “improperly coded the call and his call for [B] to be retrained or disciplined, therefore, brought to light a claim that [B’s] actions were grossly negligent.”