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Whistleblower Loses at Summary Disposition

Posted on Wednesday, March 29, 2017

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:

  1.  He was engaged in a protected activity,
  2.  The City of Flint took an adverse employment action against the plaintiff, and
  3.  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:

  1.  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
  2.  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.

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MCOA Overturns Termination Based Solely on Prior Terminations

Posted on Monday, March 20, 2017

The Michigan Court of Appeals reversed the lower court decision terminating the father’s rights to his child because of the termination of his rights to two children in the past (MCL 712.19b (3)(l)—termination where parent’s rights to another child have been terminated.)
FACTS: According to the facts, the father had provided KDR, KDR’s mother and a child belonging to KDR’s mother of In re Rutherford (Docket 332582, December 22, 2016) with consistent housing either in his apartment or his mother’s home before birth. There was no evidence presented that KDR was neglected, abused or even poorly cared for.  
The Court of Appeals reversed on several grounds; however, two are of note:
Termination due to prior termination violates due process:
Clear and convincing evidence was presented to support termination of the father’s parental rights under subsection (l), which requires only that a respondent’s parental rights to one or more of the child’s siblings have been terminated pursuant to statute. However, as the court noted, this subsection no longer supports termination since the Court ruled it unconstitutional in a recent opinion by this Court. See Gach, ___ Mich App at___; slip op at 8. This Court explained that in cases where there has been an earlier termination, if it is not clearly and convincingly proved that the parent failed to remedy the earlier abuse or neglect that led to the earlier termination, such as necessary under subsection(3)(i), “application of statutory ground (3)(l) disdains present realities in deference to past formalities” and simply “forecloses the determinative issues of competence and care.” Id. “MCL 712A.19b(3)(l) thus fails to comport with due process in light of the fundamental liberty interests at stake.”
The Court was concerned about the retroactive effect of the Gach decision, decided 18 days after the trial court entered its opinion. However, the Court was persuaded “Not only is Gach directly on point, it involves the due process right of respondent to parent, and is a likely candidate for either full or limited retroactivity.” After reviewing the factors, the Court decided full retroactivity of the rule in Gach was justified.
Termination not in the child’s best interests where relative placement ignored.

Although the Court didn’t have to consider the trial court’s best interests determination, once it was determined there were no statutory grounds, it stated: “the trial court’s best interest determination was in error because it neglected to consider KDR’s relative placement.”
The referee who wrote the 25-page best interest section of the opinion never mentioned the fact that KDR was placed with his mother, a relative. “A trial court’s failure to explicitly address whether termination is appropriate in light of the [child’s] placement with relatives renders the factual record inadequate to make a best interest determination and requires reversal.” Olive/Metts, 297 Mich App at 43 (citation omitted). Thus, because the trial court failed to consider KDR’s relative placement, reversal is required, regardless of the failure of statutory grounds previously discussed.”

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Veterinarian Malpractice Damages Award Upheld

Posted on Wednesday, March 15, 2017

In this veterinary malpractice case, Elvin v Gubert, DVM, No. 326563 and 326566, the Michigan Court of Appeals held that the trial court did not err in calculating damages, instructing the jury, or determining sanctions.
FACTS: The defendant-veterinarian, Karl Gubert, DVM, performed a castration on Larry Elvin’s horse, a two-year-old Pennsylvania Standardbred named Abundance Star. Shortly after the procedure, the horse seized-up, stopped breathing and died. The cause of death was inconclusive, but it was noted in the necropsy that the horse had a small and diseased liver.
Elvin sued Gubert, claiming he hurried the procedure, failed to perform a proper physical and failed to properly monitor the horse during the procedure leading to the death of the horse. Gubert claimed he followed the Standard of Care and that it was the diseased liver that caused the death.
At trial, there was testimony regarding horse racing. The experts agreed that horse racing in Michigan was dead, however, Abundance Star, a Pennsylvania Horse, could race in that state where gaming was state sponsored. The possibility of racing was reflected in the plaintiff’s expert appraisal of the horse, which was $100,000. Defendant’s expert originally valued the horse at $6,600, however, when he learned of the liver disease, he adjusted the value to $500.
The jury found Gubert professionally negligent and awarded Elvin $80,000. The trial court denied Gubert’s motion for a new trial (remittitur) and added $118,049 in case evaluation sanctions to the $80,000 award for a total of $198,049 and an additional $107,121 in attorney fees.
Gubert appealed.
The COA rejected Defendant’s arguments as follows:
  1.  Defendant’s argument that his motion for a new trial should have been granted because of the excessive damages. After reviewing outstanding case law, the COA held the measure of damages was properly limited to the horse’s fair market value at the date of death and was not remote, contingent or speculative.
  2. Defendant’s argument that the trial court was wrong to use Mich Civil Jury Instruction 12.01, which allowed the jury to infer negligence from lack of record keeping. Defendant’s own expert agreed that failure to keep proper or any records was below the standard of care.
  3. Defendant’s argument that the trial court’s attorney’s fee award was based on exorbitant hourly rate—COA held the court properly looked at empirical data as well as the attorneys’ skill, experience and reputation.
The trial court opinion was affirmed.

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Second Published Opinion this Week at Speaker Law Firm

Posted on Friday, March 10, 2017

Speaker Law Firm received its second published opinion of the week (and fifth for this year). Yesterday's had to do with custody in a non Hague Convention signatory country. You can read the Published Opinion on the Court of Appeals website here:  http://publicdocs.courts.mi.gov/opinions/final/coa/20170309_c326775_107_326775.opn.pdf

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U.S. Supreme Court Narrows the Scope of the IDEA’s Administrative Exhaustion Requirements

Posted on Monday, March 6, 2017
In Fry v. Napoleon Community Schools, Docket No. 15–497, the U.S. Supreme Court examined a disability-based discrimination claim brought by a Michigan student against a public school. A disabled student alleging discrimination has three primary federal statutes on which she can rely to bring her claim: (1) Title II of the Americans with Disabilities Act (ADA), which prohibits any public entity from discriminating based on disability; (2) §504 of the Rehabilitation Act, which prohibits any federally funded program or activity from discriminating based on disability; and (3) the Individuals with Disabilities Education Act (IDEA), which guarantees disabled children access to a free appropriate public education tailored to their individual needs.
If a claim is brought under the IDEA, the plaintiff must first exhaust the administrative procedures specified in that statute -- filing a complaint with the local educational agency, attending a meeting with school officials, participating in a due process hearing, and appealing an unfavorable ruling from that hearing with the state agency — before bringing suit in court. Congress subsequently passed a law requiring a plaintiff bringing a claim under the ADA or the Rehabilitation Act to exhaust the IDEA’s administrative procedures first, even if the plaintiff is not bringing any claim under the IDEA— provided that the plaintiff is seeking relief that would also be available to her under the IDEA. This prevents plaintiffs from electing to bring a claim under one of the other acts simply to avoid having to go through the IDEA’s exhaustion requirement. The issue in Fry is whether all education-based discrimination claims brought under the ADA or the Rehabilitation Act are subject to the IDEA’s administrative proceedings requirement, or whether this only applies in certain circumstances.
The plaintiff in Fry, E.F., was a kindergartner with a severe form of cerebral palsy. When she started school at Ezra Eby Elementary School in Napoleon, Michigan, she sought permission to have her service dog, Wonder, accompany her. Because school officials had already agreed to assign an aide to work with E.F. one-on-one throughout the day, they thought that Wonder’s assistance would be unnecessary and denied E.F.’s request to bring him to school with her. E.F.’s parents ultimately filed a federal lawsuit against the school district, alleging violations of Title II of the ADA and §504 of the Rehabilitation Act.
The District Court dismissed E.F.’s claim, since she failed to exhaust the IDEA’s administrative procedures before bringing suit. The Sixth Circuit upheld the dismissal, reasoning that the IDEA’s administrative exhaustion requirements apply whenever a disability-based discrimination claim is educational in nature, even if it is brought under a different statutory scheme, such as the ADA or the Rehabilitation Act. The U.S. Supreme Court, however, reversed the Sixth Court, finding its interpretation of the scope of the IDEA’s exhaustion requirement too broad. Rather, the Supreme Court held that the IDEA’s exhaustion requirement applies only to cases where the gravamen of the plaintiff’s suit is the denial of access to a free appropriate public education. The Court reasoned that the core guarantee of the IDEA was to provide disabled children with access to a free appropriate public education, and therefore the Sixth Circuit’s holding that the exhaustion requirements applied whenever the plaintiff’s claim was connected in any manner to the child’s education was too broad.
The Supreme Court found that two questions will be helpful in determining whether gravamen of the plaintiff’s complaint is the denial of a free appropriate public education or some other form of disability-based discrimination: (1) could the plaintiff have brought the same claim if the conduct had occurred at a public facility other than a school?; and (2) could an adult, as opposed to a student, have brought the same claim against the school? If the answer to those questions is yes, then the gravamen of the plaintiff’s complaint is likely to be something other than a denial of a free appropriate public education, and the IDEA’s administration exhaustion requirements would not apply. Additionally, the Court suggested that if a plaintiff had begun to utilize the IDEA’s administrative proceedings at the beginning of her case before abandoning the process mid-way through, this could be an indication that the gravamen of her complaint is the denial of a free appropriate public education to which the exhaustion requirement would apply.
The Court ultimately remanded Fry to the District Court for further investigation on the gravamen of Fry’s complaint. If the gravamen is that E.F. was denied a free appropriate public education, then she will have to exhaust the IDEA’s administrative procedures before bringing her suit in federal court. If the gravamen is found to be a different form of disability-based discrimination, the E.F.’s suit will be allowed to continue.

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Double Victory Week at Speaker Law Firm

Posted on Wednesday, March 1, 2017

Tuesday, February 28th we had a double Victory Day at the Speaker Law Firm. We convinced the Court of Appeals to vacate the Trial Court's decision in two different change of domicile cases. In these particular instances the issue in the trial court was that the judges didn't follow the law.

Yachick (Wallen) v Yachick, No. 333834 was published.  You can view that case HERE.
Eads v Scott, No. 333949, was an unpublished opinion which you can view HERE.

 Great job by our legal team, Jennifer Alberts and Sandy Lake.

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