Whistleblowers’ Protection Act (WPA); Protected activity; “About to report”; MCL 15.362; MCL 15.363(4); Shallal v Catholic Soc Servs of Wayne Cnty; Clear & convincing evidence; Causal connection; Mitigation of damages; Reinstatement offer; Rasheed v Chrysler Corp; Michigan Occupational Safety & Health Administration (MIOSHA)

The court held that a fact question existed as to whether plaintiff was “about to” report workplace safety violations to MIOSHA, so he was not entitled to summary disposition on WPA liability, but defendant also was not entitled to summary disposition. Plaintiff, a tool-room lead, repeatedly raised machine-safety concerns internally, stated during a 1/24 meeting that he had “no problem calling [MI]OSHA,” and was fired hours later because his comments were deemed “a threat about some safety concerns and what you may or may not do.” On appeal, the court held that reasonable minds could find protected activity because plaintiff said he had MIOSHA’s number “ready,” later averred he was “no longer willing to accept the unsafe environment,” and his managers understood him to be threatening to report. But the court also held that reasonable minds could find he had not yet formed the required intent because he did not expressly say he would call MIOSHA and explained that he was “willing to work with you guys” but had no issue calling MIOSHA “if it’s not taken seriously.” Thus, the “about to report” issue was for the jury. The court also affirmed the trial court’s causal-connection ruling because defendant failed to challenge it, and a “failure to brief the merits of an issue constitutes abandonment.” Finally, it held that damages mitigation remained a factual issue because whether plaintiff reasonably rejected the reinstatement offer or pursued another career was a “‘fact-laden inquiry,’” and the offer may have been conditioned on dismissal of the case and a release. Affirmed in part, reversed in part, and remanded.