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E-M:/ Whistleblower trial: CAFO buster fired by County Conservation District wins appeal



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248217    ROBIN H BERRYHILL V GRATIOT CONSERVATION DIST

Panel: CMM JEM PDO

Lower Court: GRATIOT COUNTY CIRCUIT COURT, No. 02-007374-CZ

Opinion - Per Curiam - Unpublished

http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20040824_C248217_29_248217.OPN.PDF

 

 

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Above is a Michigan Court of Appeals unpublished ruling on an appeal of a Conservation District staffer hired with a grant from the Michigan DEQ to investigate pollution problems was fired by the Conservation District after she reported pollution from dairies directly to the MDEQ, as required by the grant.  This appeals court decision overturns a lower court decision saying there was no cause of action for a claim under Michigan's Whistleblower Protection Act.  A summary of the issues from the decision (Plaintiff is the whistleblower, Robin Berryhill, defendant is the Gratiot Conservation District):

 

This case arose when defendant hired plaintiff pursuant to a grant from the Michigan Department of Environmental Quality (MDEQ). Plaintiff's grant required her to conduct research, inventory environmental

contamination, if any, in defendant's area, and create a plan that might garner more grant money for cleanup efforts. While the grant required her to report any violations of environmental laws to the MDEQ, she

remained in the employ of defendant and under its authority. According to plaintiff, she unearthed several violations by area dairy farmers, but defendant's board, consisting of local farmers, were displeased when

she reported her findings directly to an administrator from the MDEQ rather than limiting her reports to a university department and herboard-selected supervisor. According to plaintiff, the supervisor discouraged her from disclosing information regarding a fish kill caused by a farmer's pollution, and when plaintiff insisted on reporting the problem, her supervisor encouraged her to minimize the issue. After plaintiff reported this and other violations to the MDEQ administrator, defendant held two private sessions and terminated her employment. According to the MDEQ administrator, a member of defendant's board admitted that the board was angry at plaintiff for reporting the fish kill.

 

The Appeals Court reversed the lower court summary disposition for the

Conservation District, and remanded the case to the lower court.  While

not specific to the environmental issues with CAFOs, this is an

interesting case because of the Appeals Court (which is NOT a friend to

the environment in Michigan) concluding that there was a strong

possibility that the Conservation district did NOT want this staffer to

report violations.

 

Because plaintiff demonstrated a genuine issue of material fact regarding whether defendant terminated her for reporting violations of environmental laws immediately and directly to the MDEQ, the trial court erred when it granted defendant’s motion for summary disposition….

 

Moreover, the trial court erroneously found that plaintiff’s reports did not qualify as protected behavior because the reports were part of her job description and defendant essentially acted as a branch of the MDEQ. This conclusion is factually and legally flawed. The evidence demonstrated that defendant was often at odds with the MDEQ because it interfered with their goal of voluntary, rather than forced, compliance. Also, plaintiff was an employee of defendant, not the MDEQ. See Chilingirian v City of Fraser (On Remand), 200 Mich App 198, 199-200; 504 NW2d 1 (1993). Simply because plaintiff was charged with compiling an inventory of violations that the MDEQ would eventually receive does not mean that defendant wanted her to report them immediately to the MDEQ and risk farmers’ willingness to participate in further inspection and cleanup action which might, in turn, endanger potential grant money. Furthermore, the WPA does not contain an exception for employees who are acting in conformity with other obligations. It would be a serious misapplication of the law to allow an

employer to fire an employee for reporting a violation that the employee was duty-bound to report. Therefore, the trial court erred when it granted defendant summary disposition on plaintiff’s WPA claim.

 

The Appeals Court decision did not decide whether the whistleblower in fact was wrongfully discharged, and that remains to be decided in court.  However the discussion in the decision raises clearly the problem often cited by those concerned about the objectivity of many of the public agencies that are involved in agriculture regarding pollution problems from agricultural operations.  At very least, this decision raises the question of who do publicly funded agencies serve when they interfere with efforts to report or regulate pollution from CAFOs or other agricultural activities.   

 

Anne Woiwode

 

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Anne Woiwode, Director

Sierra Club Mackinac Chapter

109 East Grand River Avenue,  Lansing, MI  48906

ph: 517-484-2372 fx: 517-484-3108 e: anne.woiwode@sierraclub.org

website:  http://michigan.sierraclub.org