Smith v. City of Flint
313 Mich. App. 141, 883 N.W.2d 543, 40 I.E.R. Cas. (BNA) 1486 (2015)
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Rule of Law:
Under Michigan's Whistleblowers' Protection Act (WPA), an adverse employment action must be an objectively material change to one of the specific employment aspects listed in the statute, not merely an undesirable job assignment. Furthermore, an employee's public disagreement with an employer's policy decision does not constitute a 'protected activity' if it does not report a violation or suspected violation of a law or rule.
Facts:
- Plaintiff Smith was a police officer for the City of Flint and also served as the president of the police officers' union.
- In April 2012, Michael Brown, Flint's emergency manager, issued an order eliminating the full-time union president position, requiring Smith to return to regular police duties.
- In November 2012, Flint voters approved a millage to raise funds for public safety.
- After the millage passed, Smith publicly complained that the city was not using the revenue to hire as many new police officers as possible.
- On March 8, 2013, the Flint police chief informed Smith in writing that he was being assigned to road patrol.
- Smith was subsequently assigned to patrol Flint's north end, which he claimed was the most dangerous area of the city, and asserted this was retaliation for his public criticism.
Procedural Posture:
- Plaintiff Smith filed a complaint against the City of Flint in the trial court, alleging retaliation in violation of the Whistleblowers’ Protection Act (WPA).
- The City of Flint filed a motion for summary disposition, arguing that Smith's reassignment did not constitute an adverse employment action under the WPA.
- The trial court granted the City of Flint's motion for summary disposition on the WPA claim.
- Smith appealed to the Michigan Court of Appeals, which initially declined to grant leave to appeal.
- The Michigan Supreme Court remanded the case to the Court of Appeals for consideration as on leave granted, directing it to address whether Smith had stated a claim that he suffered discrimination.
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Issue:
Does a police officer's reassignment to a patrol duty in a specific, allegedly more dangerous part of the city, after he publicly criticized his employer's policy decisions on fund allocation, constitute an adverse employment action under Michigan's Whistleblowers' Protection Act (WPA)?
Opinions:
Majority - Saad, J.
No. A police officer's reassignment to a particular patrol duty within the city does not constitute an adverse employment action under the WPA, and disagreeing with an employer's policy decision is not a protected activity under the statute. To state a claim under the WPA, a plaintiff must show a specific adverse action listed in the statute (affecting compensation, terms, conditions, location, or privileges) that is objectively and materially adverse, not merely a subjective inconvenience. The court reasoned that assigning an officer to patrol a specific area within the city they are sworn to protect is a 'job duty' and not a change in 'location' as contemplated by the WPA, which implies a more significant change like a transfer to another city. Furthermore, the court found Smith did not engage in a 'protected activity' because he was merely disagreeing with the city's policy decisions on spending, not reporting a violation or suspected violation of a law, which is a prerequisite for WPA protection.
Dissenting - Fort Hood, P.J.
Yes. A question of fact exists as to whether the defendant's actions constituted an adverse employment action that a jury should decide. The dissent argues that viewing the facts in the light most favorable to the plaintiff, the assignment could be seen as objectively and materially adverse. The plaintiff was informed his hours would be 8:00 a.m. to 4:00 p.m. but was actually assigned the night shift, which prevented him from conducting his union duties. Furthermore, he was assigned to patrol the city's most dangerous area exclusively, unlike other officers. The dissenting judge believes these changes to his hours and specific location could constitute discrimination regarding the 'terms' and 'location' of his employment, creating a question of fact sufficient to survive a motion for summary disposition.
Analysis:
This decision narrows the scope of Michigan's Whistleblowers' Protection Act by tightening the definitions of both 'adverse employment action' and 'protected activity.' By interpreting 'location' narrowly to exclude intra-city reassignments for certain jobs and requiring an objectively material change, the court makes it more difficult for employees to claim retaliation for undesirable work assignments. Moreover, the strict distinction between reporting illegal conduct (protected) and disagreeing with policy (unprotected) raises the threshold for what qualifies as whistleblowing, potentially discouraging public employees from speaking out on policy matters for fear of unchallengeable reprisal.
