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To Shinn, the reason many challengers in whistleblower lawsuits do not prevail has to do with competing story lines – while the fired employee claims retaliation, the employer counters the employee was a poorly performing employee who is disgruntled after being fired.
"Against that backdrop, if an individual sues within the statute of limitations and meets the evidentiary framework, a presumption of retaliation arises," Shinn explained. "However, the employer can rebut that presumption by offering a legitimate reason or reasons for making the adverse employment decision. For a whistleblower case to be valid, the employee must prove there is a causal connection between the act of retaliation and discrimination and the activity protected under the whistleblower statute."
Akeel agrees. "Courts have been mixed – did the employe get fired because of the whistleblower or because of poor performance? It's 50-50 in my experience. The attorney lives and dies by the credibility of the witness. If the person is moral and upstanding, with excellent performance reviews, and is only fired once the whistle is blown, the court goes their way."
Brown, who works on a federal level, said if the government intervenes in a whistleblower case, "there a high likelihood it's going to lead to a settlement," noting cases rarely go to a trial. "We'll see it more and more (of settlements), because the incentives are there. If the government does not intervene, and it goes to trial, you're entitled to a higher percentage."
While the Michigan Accountability Index Report card rated the Michigan Whistleblower Protection Act as being below par, and having a ranking of 42nd out of 51 states, plus the District of Columbia, for its lack of breadth of coverage and that it doesn't include collective bargaining rights, Brown disagrees.
"I definitely don't think so. Michigan seems like an active office. New York may have a bigger office, but Michigan brings plenty of good cases, and has good statutes," he said, noting cases brought by former U.S. Attorney Barbara McQuade included successful prosecutions of Dr. Farid Fata, the Rochester Hills oncologist who convinced hundreds of patients they had cancer in order to bilk Medicaid for chemotherapy treatments. "That was a False Claims Act whistleblower case. That's the kind of case where maybe it's not the most profitable, but it's the right thing to do."
He also pointed out the Kilpatrick prosecution, which initially stemmed from whistleblower complaints, and "I give Michigan credit for auto cases. I think the attorney general's office is quite active and does a good job. Some states don't have any Medicaid whistleblower statutes."...continued on page 11