Retaliation and Disability Discrimination

[Silverplum]

OP employers aren't legally required to follow their own policies. This is a legal fact and it's what caused Zigner's question. I don't understand why Zigner's perfectly reasonable and polite question caused all this crazed vitriol from you. Your response is really puzzling.

swalsh solved the puzzle, IMO.

 

[Eekamouse]

If you're so certain you already know the answer, why are you even bothering to ask the question?

 

[cbg]

And to answer your question, no. A letter is not "proof" of what did or did not happen; it is nothing more than the writer's interpretation of what he or she believes, or claims to believe, happened.

 

[Lola Lisa5]

You asked? Really?

Just out of curiosity, what do you believe your cause of action is here?

I'll satisfy your curiosity. My cause of action? It is unlawful for an employer to fire an employee for exercising the statutorily-protect right to oppose discriminatory and retaliatory conduct.

 

[Zigner]

I'll satisfy your curiosity. My cause of action? It is unlawful for an employer to fire an employee for exercising the statutorily-protect right to oppose discriminatory and retaliatory conduct.

Then your question is moot.

ETA: Not all discrimination is illegal. Not all retaliation is illegal.

 

[Lola Lisa5]

Oh Really?

And to answer your question, no. A letter is not "proof" of what did or did not happen; it is nothing more than the writer's interpretation of what he or she believes, or claims to believe, happened.

I would be loony to believe your response, lol.

 

[Lola Lisa5]

Seriously?

Then your question is moot.

ETA: Not all discrimination is illegal. Not all retaliation is illegal.

Your responses are the reasons why OPS don't take what they read here seriously. I signed in just to count how many smart alec responses I would receive.

FIVE or SIX so far. What a joke, lol.

 

[Zigner]

Your responses are the reasons why OPS don't take what they read here seriously. I signed in just to count how many smart alec responses I would receive.

FIVE or SIX so far. What a joke, lol.

Mine is not a smart alec (sic) response. Your question is moot based on your perceived cause of action.

 

[Lola Lisa5]

Love to Read

If you're so certain you already know the answer, why are you even bothering to ask the question?

Well to read the smart alec responses of course, lol!

 

[Lola Lisa5]

Mental or Physical?

You truly are "disabled."

I'd rather have a physical disability than a mental one. I suggest meds for you.

P.S. The attorney who sent letter attempting to cover her client for failing to conduct an investigation may face legal malpractice.

 

[cbg]

You don't have to believe me. You'll find out when you try to use the letter as proof in court.

Assuming you're not a troll, that is. I was willing to believe you were for real at first, but your reaction to responses that are not what you want to hear have me wondering.

 

[tranquility]

I'll satisfy your curiosity. My cause of action? It is unlawful for an employer to fire an employee for exercising the statutorily-protect right to oppose discriminatory and retaliatory conduct.

That is not a cause of action. State the caption of your complaint or the statute violated.

If you want a little more to show the problem with your generalizations, state how proving they did not follow their internal policies or investigate your complaint that others were being discriminated against is an element of the cause of action. (We can discuss the hearsay issue of the letter later.)

While there are some exceptions, generally a person get whistleblower protection when they file a complaint with authorities, not with the company. Since you have not alleged anything but an internal complaint, the Whistleblowers' Protection Act does not apply as such a complaint is not a "protected activity". Your only recourse would be a common law complaint for being fired in violation of public policy. However, that is problematical as well. There the case is Suchodolski v Michigan Consolidated Gas Co,412 Mich 692. The policy as described in another case is at http://statecasefiles.justia.com/documents/michigan/court-of-appeals-unpublished/20030807_C235235_38_235235.OPN.PDF?ts=1323899375 :

In Suchodolski v Michigan Consolidated Gas Co, supra, this Court
recognized that there was an exception to the general rule that either party to an
employment at will contract could terminate the agreement at any time for any or
no reason. The exception is based on the principle that "some grounds for
discharging an employee are so contrary to public policy as to be actionable." Id.
at 695. We also found that these restrictions on an employer's ability to terminate
an employment at will agreement are most often found in explicit legislation. Id.
The WPA is such legislation. Id.
The existence of the specific prohibition against retaliatory discharge in
the WPA is determinative of the viability of a public policy claim. In those cases
in which Michigan courts have sustained a public policy claim, the statutes
involved did not specifically proscribe retaliatory discharge. Where the statutes
involved did proscribe such discharges, however, Michigan courts have
consistently denied a public policy claim. Compare Trombetta v Detroit, T & I R
Co, 81 Mich App 489; 265 NW2d 385 (1978) (the public policy claim was
sustained where the defendant was discharged for refusing to manipulate and
adjust pollution control reports), and Sventko v Kroger Co, 69 Mich App 644; 245
NW2d 151 (1976) (the claim was sustained where the defendant was discharged
for filing a lawful workers' compensation claim), with Covell v Spengler, supra
(the public policy claim was denied where the defendant also was sued under the
WPA and the statute proscribed discharge in retaliation for the employee's
complaints to the labor board concerning overtime pay), and Ohlsen v DST
Industries, Inc, 111 Mich App 580; 314 NW2d 699 (1981) (the claim was denied
where the employee also sued under MIOSHA provisions that prohibited
discharge in retaliation for the employee's exercise of statutory rights). A public
policy claim is sustainable, then, only where there also is not an applicable
statutory prohibition against discharge in retaliation for the conduct at issue. As a
result, because the WPA provides relief to Dudewicz for reporting his fellow
employee's illegal activity, his public policy claim is not sustainable. [Footnote
omitted.]

summarizing what needs to be proven:

First, plaintiff engaged in protected activity. The activity's protection may
stem either from a constitutional or statutorily granted right or from an obligation
favored by statutory policy. Second, plaintiff was discharged. Third, a causal
connection exists between the plaintiff �s protected activity and the discharge. See
Schlei & Grossman, Employment Discrimination Law, ch 15, p 534 (Washington,
D.C.: Bureau of National Affairs, 1983). [Clifford v Cactus Drilling Corp, 419
Mich 356, 368-369; 353 NW2d 469 (1984) (Williams, C.J., dissenting).]

Since you have no constitutional protection and, as I said, the WPA is the statutorily granted right for this issue (requiring "protected activity"), you must be relying on an "obligation favored by statutory policy". There, the case is Vagts v Perry Drug Stores, Inc, 204 Mich App 481. Your claim would be the third:

Generally, employment relationships are terminable at will, with or without cause, "at any time for any, or no, reason." Suchodolski v Michigan Consolidated Gas Co, 412 Mich. 692, 694-695; 316 N.W.2d 710 (1982). "However, an exception has been recognized to that rule, based on the principle that some grounds for discharging an employee are so contrary to public policy as to be actionable." Id. at 695. These grounds are "[m]ost often... found in explicit legislative statements prohibiting the discharge, discipline, or other adverse treatment of employees who act in accordance with a statutory right or duty." Id. (first exception). "[C]ourts have also occasionally found sufficient legislative expression of policy to imply a cause of action for wrongful termination even in the absence of an explicit prohibition on retaliatory discharges" such as "where the alleged reason for the discharge ... was the [employee's] failure or refusal to violate a law in the course of employment." Id. (second exception). Courts have also "found implied a prohibition on retaliatory discharges when the reason for a discharge was the employee's exercise of a right conferred by a well-established legislative enactment." Id. at 695-696 (third exception).

The first and third forms of public policy claims identified in Suchodolski clearly rely upon a statute for the source of an identifiable public policy. See id. In Suchodolski, for example, the Court found no grounds to imply a cause of action where the employee was discharged for reporting accounting irregularities and mismanagement. For a source of public policy, the employee relied upon the internal code of ethics of the Institute of Internal Auditors and upon the Public Service Commission's "extensive regulation of the accounting systems of public utilities." Id. at 696. The Court found that the "code of ethics of a private association does not establish public policy" and that the PSC's regulation of the industry's accounting practices was "not ... directed at conferring rights on the employees." Id. at 696-697.

Uh oh, that seems to put the kibosh on any company policy violation, doesn't it? But that third portion is still tantalizing, isn't it. The holding on it states, however:

She clearly does not fit under the third exception because she did not claim to have been constructively discharged for exercising a statutory right.

So, I say again, what is your cause of action? What statutory right were you exercising that has been violated?

Your key problem is that you are not alleging you are being discriminated against for a prohibited reason, but that you felt others have been discriminated against for prohibited reasons and you reported it internally. MAYBE, you would have had protection under the WPA if you reported it to authorities. However, internal reporting would not protect you. Even if you were the one being discriminated against.

 

[tranquility]

I'd rather have a physical disability than a mental one. I suggest meds for you.

P.S. The attorney who sent letter attempting to cover her client for failing to conduct an investigation may face legal malpractice.

How so? In the first place, the attorney was not YOUR attorney so you would not have standing to sue. In the second, how is it malpractice in any way?

 

[OHRoadwarrior]

If you truly feel you have such a strong cause of action, I suggest you obtain a free local consultation with an attorney to hasten your case.