Background
Phillip Nichols, Jr. worked for Diversified Engineering & Plastics, LLC and repeatedly raised concerns about allegedly unsafe machinery and working conditions. He told company leaders that he had no problem contacting the Michigan Occupational Safety and Health Administration if the problems were not addressed. During a January 9, 2024 meeting concerning a position change and pay reduction, Nichols again discussed unresolved safety issues and the possibility of calling MIOSHA.
Several hours later, the company terminated Nichols. Management told him that his safety-related statements and possible MIOSHA report had been viewed as a threat; the termination notice also cited his suspected unauthorized recording of the earlier meeting. Nichols later reported the conditions to MIOSHA, which inspected the facility and issued three citations. Nichols sued under Michigan’s Whistleblowers’ Protection Act. The trial court granted him summary disposition on liability but denied the company summary disposition on damages.
The Court’s Holding
The Court of Appeals held that neither side was entitled to summary disposition on whether Nichols was “about to” report legal violations to MIOSHA. Evidence that Nichols had obtained MIOSHA’s number, repeatedly mentioned contacting the agency, and was regarded by management as intending to report could permit a jury to find by clear and convincing evidence that he was about to report. But his conditional and equivocal statements could also permit a jury to find that he had not yet formed the required intent. The court therefore reversed the grant of summary disposition to Nichols on liability while affirming the denial of the company’s motion.
The court also affirmed the trial court’s determination that the causal connection between the asserted protected activity and Nichols’s discharge was not genuinely disputed because the company abandoned that issue on appeal. On damages, factual questions remained about whether Nichols reasonably mitigated his losses by seeking other work, enrolling in college, and rejecting the company’s reinstatement proposal. The record did not establish as a matter of law that the proposal was an unconditional offer rather than a settlement conditioned on dismissal and release of Nichols’s claims.
Key Takeaways
- An employee need not make an immediate report or use specific words to invoke the WPA’s “about to report” protection, but must ultimately prove the intent to report by clear and convincing evidence.
- Conditional statements about contacting a regulator can support an “about to report” finding, yet conflicting inferences about the employee’s actual intent generally must be resolved by the factfinder.
- An employer asserting failure to mitigate bears the burden of proving the defense, and rejection of reinstatement creates a presumption of unreasonableness only after the offer is shown to be unconditional.
Why It Matters
The decision distinguishes evidence sufficient to reach a jury from evidence establishing WPA liability as a matter of law. Even direct references to contacting a regulator may leave a factual dispute when the employee’s words and surrounding circumstances permit competing conclusions about whether a report was genuinely imminent.
The opinion also underscores the importance of documenting reinstatement proposals. An offer communicated during settlement discussions and potentially tied to a release or dismissal may not qualify as an unconditional offer that limits back-pay damages.