By Melanie Deeds
Legal News
The Michigan Court of Appeals this week reinstated a wrongful firing lawsuit filed by a former Macomb County Probate Court administrator, saying evidence existed that the firing of Donald Housey was a retaliatory action.
The lawsuit was filed before Housey, who served as court administrator for nearly a decade, suffered a fatal heart attack in February 2012 at the age of 70.
“We are very happy with the verdict,” said Charlotte Croson, the Bingham Farms attorney representing Mitchell Housey Jr., personal representative of his brother’s estate.
“We think they reached the right decision,” she said. “It’s vindication for Donald Housey and it’s unfortunate he’s not here to receive the news.”
Croson said Housey was fired “for acting to protect some of the most vulnerable people in Macomb County.”
There was no immediate response from the attorney representing Macomb County Probate Court regarding whether an appeal was being considered.
Housey was dismissed in 2010 and filed a whistleblower lawsuit in both federal and state courts claiming the action was the result of complaints he made to state investigators.
Last August, the 6th Circuit U.S. Court of Appeals upheld dismissal of the lawsuit by U.S. District Court in Detroit and the legitimacy of the firing by Macomb County Circuit Court Judge Mark Switalski, who had taken over as chief judge of both circuit and probate court in 2009.
The lawsuit — filed against Switalski, Probate Judge Kathryn George and Macomb County — claimed that the judges retaliated against him because he cooperated with the State Court Administrative Office and the Judicial Tenure Commission into George’s handling of cases.
The three-judge Michigan Court of Appeals panel, in its April 8 ruling, noted that the lawsuit claimed Housey’s discharge was in retaliation for activity protected under the Whistleblower Protection Act.
Attorneys for probate court had argued that Housey’s communications with the SCAO and the JTC “were part of his job duties and that it is ‘counter-intuitive’ to call performing one’s job as engaging in protected activity.”
They argued that “to do so would unnecessarily insulate an employee from adverse consequences for performing his job duties,” according to the ruling.
The appeals court disagreed.
“Where the performance of a job duty would require engaging in protected activity, the WPA protects the employee who performs that duty,” the ruling stated. “The employee who fails to perform his job duty — i.e., fails to make such a report — and is fired for failing to perform his job duty would not have engaged in protected activity.”
In the ruling, the panel evidence was presented that Switalski fired Housey “based on the judge’s perception” of Housey’s responsibility regarding problems faced by probate court, among other things.
The “real issue” in this case, the appellate court said, was whether Housey could establish a causal connection between his activity and his discharge.
“Clearly, the evidence on this point is thin,” the panel said, adding however that there was evidence “albeit minimal, regarding causation.”
Housey’s estate, the court said, had presented valid arguments for a case under WPA and to rebut the court’s claim of a valid reason for the termination, according to the ruling.
The court said it was uncertain whether a jury would reject the reasons given for the firing or accept the claims of retaliation but “that is a determination for a jury to make, not for this Court or the trial court to do so in a motion for summary disposition.”
Macomb County Judge Edward Servitto had dismissed this suit as well as one accusing breach of contract and “legitimate expectations.” An appeal is pending on the second suit.
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