Henderson v. Flint, City of, Michigan et al

Filing 89

ORDER Regarding Jury Instructions. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Natasha Henderson,
Plaintiff,
v.

Civil Action No. 16-11648

City of Flint,

Sean F. Cox
United States District Court Judge

Defendant.
___________________________/
ORDER
REGARDING JURY INSTRUCTIONS
Following her termination as City Administrator, Plaintiff Natasha Henderson filed this
action against the City of Flint and its Mayor, asserting multiple claims. Henderson’s only
remaining claim is her claim against the City that she was wrongfully terminated in violation of
Michigan’s Whistleblower’s Protection Act, Mich. Comp. Laws § 15.362 et seq. (“WPA”). That
sole claim proceeded to a jury trial that began on May 1, 2019. The parties have agreed upon the
majority of the jury instructions but have a dispute as to three requested jury instructions.
1.

Causation Under WPA
First, with respect to the causation jury instruction, they disagree as to what instruction is

appropriate.
Henderson contends that Michigan Model Civil Jury Instruction 107.03, titled
“Whistleblowers’ Protection Act: Causation,” is the proper jury instruction as to causation.
Henderson asserts that, as applied here, the instruction should read as follows:
When I use the term “because of” I mean that protected activity must be
one of the motives or reasons defendant discharged the plaintiff. Protected
1

activity does not have to be the only reason, or even the main reason, but it does
have to be one of the reasons that made a difference in defendant’s decision to
discharge the plaintiff.
In order to prove causation, plaintiff must show that a decision-maker or
person who influenced the decision knew of plaintiff’s protected activity.
Knowledge may be shown by direct evidence or circumstantial evidence.
(Joint Proposed Jury Instructions at 22).
The City contends that standard jury instruction is no longer good law, as to the first
sentence of the instruction, and asserts that the causation instruction should be modified to read
as follows:
When I use the term “because of” I mean that the alleged protected
activity must be the “but for” cause of her discharge. In other words, Plaintiff
must show that her discharge would not have occurred in the absence of her
alleged protected activity.
In order to prove causation, plaintiff must show that a decision-maker or a
person who influenced the decision knew of plaintiff’s protected activity.
Knowledge may be shown by direct evidence or circumstantial evidence.
(Id. at 23).
In support of its position, the City notes that the standard jury instruction at issue was last
amended in 2004 and that it relies on Hazle v. Ford Motor Co., 464 Mich 456 (2001). The City
notes that the instruction and Hazle predate the United States Supreme Court’s decision in
University of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013), wherein the Supreme Court
held that a “but for” causation standard applies to Title VII retaliation claims.
The City asserts that, in light of the Supreme Court’s analysis of the term “because” in
Nassar, and that Michigan courts have considered Title VII standards in considering those that
apply to the Elliott Larsen Civil Rights Act and the WPA, the Court should apply a “but for”
causation standard to Henderson’s WPA claim in this case.
After Nassar, however, the Sixth Circuit continued to apply the “motivating factor”
2

causation standard to WPA claims and not a “but-for” causation standard. See McCray v.
Carter, 571 F. App’x 392, 398 (6th Cir. 2014). In that case, the Sixth Circuit stated that “[a]
plaintiff can prevail on a WPA claim if she can show that ‘protected activity was a ‘motivating
factor’ for the employer’s adverse action’” and, therefore, “Plaintiff does not need to prove butfor causation.” Id. In a footnote, the Sixth Circuit stated:
The U.S. Supreme Court has recently clarified that a plaintiff must prove but-for
causation to prevail in ADEA claims and Title VII retaliation claims. See Univ.
of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133 S.Ct. 2517, 2533, 186 L.Ed.2d
503 (2013); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78, 129 S.Ct. 2343,
174 L.Ed.2d 119 (2009). Both of these statutes proscribe retaliating against
someone “because” of that person’s protected activity. 29 U.S.C. § 623(a)
(ADEA); 42 U.S.C. § 2000e-3(a) (Title VII). Although the WPA contains the
same “because” language, Mich. Comp. Laws § 15.362, we doubt that Michigan
courts would upset this settled issue of state law based on the Supreme Court’s
pronouncements on two federal statutes. Indeed, Michigan courts have already
rejected but-for causation in WPA claims for failure to promote. See Hopkins v.
City of Midland, 158 Mich.App. 361, 404 N.W.2d 744, 752 (1987).

Id. at n.1.
The City also directs the Court to Hecht v. National Heritage Academies, Inc., 499 Mich.
586 (2016), wherein the Michigan Supreme Court held that a “but-for” causation standard
applies to claims under the ELCRA, and two unpublished decisions that recognize that the
Michigan Supreme Court applied a but-for causation standard for claims under the ELCRA in
Hecht.
The City has not, however, provided any decisions from Michigan Courts or the Sixth
Circuit wherein a but-for causation standard has been applied to a claim under Michigan’s WPA.
Given the lack of such cases, and in light of the Sixth Circuit’s statements in McCray, this Court
concludes that the causation standard set forth in Mich. M. Civ. JI 107.03 is still the appropriate

3

standard for claims under Michigan’s WPA. Accordingly, the Court ORDERS that the jury
shall be given Henderson’s requested causation jury instruction, Mich. M. Civ. JI 107.03.
2.

Temporal Proximity
Second, the City asks the Court to give the following jury instruction regarding temporal

proximity: “Something more than a temporal connection (or a short period of time) between
plaintiff’s protected conduct and plaintiff’s termination is required to show causation when
retaliation is claimed.” The City cites Henderson v. Flint, 751 F. App’x 618, 626 (6th Cir. 2018)
and Debano-Griffin, 828 N.W.2d 634, 639 (2013) as the authority for that requested instruction.
Henderson acknowledges that is an accurate statement of the law. She asserts, however,
that the instruction somehow suggests that the “something more” that is required is direct
evidence.
The Court finds Henderson’s objection to this instruction to be without merit. The
instruction is an accurate statement of the law and especially relevant in this case, considering
Henderson’s stated theory of the case. Moreover, the instructions as a whole clearly indicate that
direct evidence is not required and that circumstantial evidence is sufficient. As such, the Court
ORDERS that the requested temporal proximity instruction shall be given to the jury.
3.

Reasonableness & Specificity
The parties agree that Michigan Model Civil Jury Instruction 107.04, titled

“Whistleblowers’ Protection Act: Good Faith Belief” should be given. That standard jury
instruction reads: “Plaintiff must reasonably believe that a violation of law or a regulation has
occurred. It is not necessary that an actual violation of law or a regulation has occurred, but the
employee cannot have a reasonable belief if she knows her report is false.”

4

In addition to that agreed-upon instruction, the City asks that the Court give the following
additional, non-standard jury instruction:
Special Instruction: Reasonableness & Specificity
Whether the plaintiff’s belief is reasonable will depend on the totality of
the circumstances known by the plaintiff at the time of the complaint, analyzed in
light of the plaintiff’s training and experience.
Further, for plaintiff’s report to be protected under the law, the report must
be specific and it must be directed at unlawful practices.
Henderson objects to the requested non-standard jury instruction. The Court agrees that the
instruction is unnecessary and repetitive, in light of M Civ JI 107.04. As such, the Court
DECLINES to give this requested special instruction.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge

Dated: May 9, 2019

5