585 F.Supp.3d 1021
E.D. Mich.2021Background
- Natasha Dorchy worked for Fifth Third Bank since 2007 and reported a domestic assault by her spouse to police and Child Protective Services.
- Per bank policy, Dorchy notified her employer after calling law enforcement; the bank placed her on paid administrative leave, conducted internal and external investigations, then terminated her in October 2020.
- Dorchy sued under the Michigan Whistleblower’s Protection Act (WPA), alleging termination for engaging in protected activity; Fifth Third moved for summary judgment.
- The bank’s investigations and an expert assessment were considered by its Employee Relations consultant in the decision to terminate; the bank’s workplace-violence policy (which required reporting and allowed termination) was central to its defense.
- The Court denied summary judgment, finding genuine disputes of material fact on whether Dorchy’s report was protected activity and whether the bank’s stated reasons were pretextual and causally connected to the termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether reporting domestic violence to police/CPS is protected activity under the WPA | Dorchy: reporting to police/CPS is reporting a suspected violation of law to a public body and thus protected | Fifth Third: implicitly conceded the report occurred but relied on other bases for termination (workplace safety) | Held: Reporting to police/CPS qualifies as protected activity under WPA (court cites liberal construction and authority holding third‑party reporting protected) |
| Whether termination/leave qualifies as adverse employment action under the WPA | Dorchy: termination (and placement on paid leave) are materially adverse actions | Fifth Third: characterized action as required by workplace safety policy and investigatory steps | Held: Termination is an adverse action; paid leave could also be adverse but court did not need to decide that to deny summary judgment |
| Whether a causal connection exists between protected activity and termination | Dorchy: bank investigated after her report and considered that information; timing and investigation create jury question of pretext | Fifth Third: termination resulted from investigation and safety concerns, not retaliation | Held: Genuine issue of material fact exists on causation/pretext because bank considered the report in its investigation and decision-making; summary judgment denied |
| Whether the bank’s workplace-safety policy provides a legitimate, non-retaliatory reason | Fifth Third: relied on workplace-violence policy to justify termination | Dorchy: policy required reporting to law enforcement and then to employer, creating a risk that compliance could trigger discipline; policy could be a pretext | Held: Court found sufficient factual dispute over whether the policy was applied neutrally or used pretextually, so summary judgment inappropriate |
Key Cases Cited
- Chandler v. Dowell Schlumberger Inc., 572 N.W.2d 210 (Mich. 1998) (WPA construed to cover third‑party violations)
- McNeill‑Marks v. Midmichigan Med. Ctr.‑Gratiot, 891 N.W.2d 528 (Mich. Ct. App. 2016) (WPA protects reporting of non‑employer conduct)
- Kimmelman v. Heather Downs Mgmt. Ltd., 753 N.W.2d 265 (Mich. Ct. App. 2008) (participation in criminal investigation protected under WPA)
- Kuhn v. Washtenaw Cnty., 709 F.3d 612 (6th Cir. 2013) (defining public body and protected activity under WPA)
- Peña v. Ingham Cnty. Rd. Comm’n, 660 N.W.2d 351 (Mich. Ct. App. 2003) (examples of materially adverse employment actions)
- West v. Gen. Motors Corp., 665 N.W.2d 468 (Mich. 2003) (causation standard under WPA)
- Millar v. Constr. Code Auth., 912 N.W.2d 521 (Mich. 2018) (adverse action analysis under WPA)
- Smith v. Gentiva Health Servs. (USA) Inc., 296 F. Supp. 2d 758 (E.D. Mich. 2003) (elements of WPA prima facie case)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary‑judgment burden allocation)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary‑judgment standard on genuine dispute)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (nonmovant must show more than metaphysical doubt)
- Lawson v. FMR LLC, 571 U.S. 429 (2014) (discussion on scope of whistleblower protections in analogous federal context)