In Wurtz v. Beecher Metropolitan District, the Court of Appeals held that failure to renew an employment contract could constitute an “adverse employment action” under the Whistleblower Protection Act (WPA). The WPA allows an employee to bring an action against his employer or former employer if he was engaged in a “protected activity,” suffers an adverse employment action of dismissal or discrimination, and can show a causal connection between the activity and the adverse employment action. In this case, the plaintiff was employed under a contract for ten years, during which he repeatedly reported board members’ illegal conduct to the government. At the end of the contract period, the board voted not to extend the contract. The Court interpreted the WPA by analogy to the Michigan Civil Rights Act (CRA) and refused to hold that non-renewal of a contract was never an adverse employment action. Rather, non-renewal may qualify under the WPA in certain circumstances, which must be evaluated by the court on a case-by-case basis. Because a genuine and material issue remained as to when the employer decided to not renew, and because it was improper to resolve the employer’s motive for not renewing on summary disposition, the Court of Appeals reversed and remanded for further proceedings.
In dissent, Judge Kirsten Frank Kelly argued that no adverse employment action occurred in this case. The WPA requires an employment relationship at the time of the dismissal or discrimination. Because the plaintiff’s employment had already terminated under the terms of the contract, he was no longer an employee and thus the failure to extend the contract could not constitute an adverse employment action. Judge Kelly also asserted that it was erroneous to compare the CRA and the WPA, as the CRA expressly applies to pre-employment conduct while the WPA does not. Thus, she would have affirmed the trial court’s grant of summary judgment.
