Michigan Court of
Appeals (MCOA) in
Kevin Smith v City of Flint, No.
320437,
a for publication opinion, affirms lower court grant of summary disposition on
Plaintiff’s claim under the Whistleblowers’ Protection Act (WPA) MCL 15.361 et
seq.
FACTS: Kevin
Smith, plaintiff and a police officer with the Flint Police Department, had
been president of the City of Flint Police Officers Union since February 2011.
He worked from 8:00 a.m. until 4:00 p.m., handling all work-related grievances
filed by Flint police officers. On April 24, 2012, Michael Brown, Flint’s emergency
manager, eliminated the position of full-time union president. In November
2012, Flint voters passed a five-year, six-million dollar millage to collect funds for
public safety. After the millage increase was passed, Smith publicly complained
that the revenue from the millage was not being used to hire as many new police
officers as possible. On March 8, 2013, Smith was re-assigned to road patrol.
Smith asserted
that defendant retaliated against him for publicly criticizing the misuse of
the millage revenue by assigning him to road patrol. He filed a complaint
against the City which included a claim for retaliation in violation of the
WPA. The City moved for summary disposition under MCR 2.116(C)(8) of Smith’s
WPA claim arguing that the assignment didn’t constitute an adverse employment
action under the WPA.
Analysis
The WPA prohibits
an employer from discharging or discriminating against an employee because the
employee reports a violation or suspected violation of a rule, regulation or
law of Michigan or the United States.
To establish a WPA violation Smith
must show that:
- He was engaged in a protected activity,
- The City of Flint took an adverse employment action
against the plaintiff, and
- A causal connection exists between the
plaintiff’s protected activity and the adverse employment action against
the employee.
The Supreme Court
directed the MCOA to address whether Smith established a case with respect to
the second element—that he suffered discrimination regarding his terms,
conditions, location, or privileges of employment.
The court (Peña v
Ingham Co Rd Comm, 255 Mich App 299) determined that to establish an adverse
employment action under the WPA, a plaintiff must show that he was discharged,
threatened, or otherwise discriminated against, in a manner that affected his
compensation, terms, conditions, location, or privileges of employment. Namely,
an adverse employment action must be more than a mere inconvenience or an
alteration of job responsibilities. There must be some objective basis for
concluding that the change is adverse. A plaintiff’s subjective impressions as
to the desirability of one position over another are not controlling. See Peña,
255 Mich App at 314.
Smith failed on two counts:
- He didn’t allege sufficient facts to show he
suffered an actual adverse employment action within 90 days of filing his
complaint. His removal as Union President and return to patrol officer was
ordered in April 2012, over 90 days before he filed his complaint. And,
the decision to return him to the field was made before he complained
about the use of the millage revenue
- His assignment to patrol duty in the north end
of Flint doesn’t constitute an adverse employment action. The assignment
to patrol duty is a “job duty” that falls squarely within the discretion
of the police department. A change of location must be a significant,
objective one such as a move to another city not as here, where the change
of location is within the same city the officers are sworn to
protect.
Finally, the
court held that Smith failed to establish he participated in any protected
activity under the Whistleblower Statute. The court defined the two types of
whistleblowers as follows:
“Type 1
whistleblower” is “one who, on his own initiative, takes it upon
himself to communicate the employer’s wrongful conduct to a public body in an
attempt to bring the, as yet hidden, violation to light to remedy the situation
or harm done by the violation.” Henry v Detroit, 234 Mich App 405, 410; 594
NW2d 107 (1999).
“Type 2
whistleblower” is “[one] who participate[s] in a previously initiated
investigation or hearing at the behest of a public body.” Id.
Labels: adverse employment action, appeals, appellate, City of Flint, Court of Appeals, Genesee County, Michigan, retaliation, Whistleblowers Protection Act
