Whistleblower Loses at Summary Disposition

Michigan Court of Appeals (MCOA) in Kevin Smith v City of Flint (Docket 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.