Smith v. City of Flint
313 Mich. App. 141
| Mich. Ct. App. | 2015Background
- Plaintiff was president of the Flint Police Officers Union (full-time assignment) until Emergency Manager Order 18 (Apr 2012) eliminated the full-time position; plaintiff returned to patrol duties later in 2012.
- Voters approved a five-year millage for public safety (projected $5.3M first year); plaintiff publicly criticized Flint for not spending the millage to hire more police.
- After his public criticism, plaintiff was reassigned to road patrol and later placed on night-shift patrol in Flint’s north end; plaintiff alleged this was more dangerous and hindered his union duties.
- Plaintiff filed suit including a Whistleblowers’ Protection Act (WPA) retaliation claim; defendant moved for summary disposition under MCR 2.116(C)(8).
- The trial court granted C(8) dismissal; the court of appeals affirmed, holding plaintiff failed to plead an adverse employment action under the WPA and also failed to plead protected activity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff pleaded an adverse employment action under the WPA | Assignment to north-end/night-shift and removal from full-time union president was retaliation affecting location/terms/privileges | These actions were job-duty changes or preexisting administrative decisions, not materially adverse "location" or WPA-covered actions | Court: No; WPA requires discharge/threat/other discrimination affecting compensation, terms, conditions, location, or privileges in an objectively material way; patrol-area assignment within same city is a job duty, not "location" covered by WPA; dismissal affirmed |
| Whether plaintiff engaged in protected activity under the WPA | Publicly criticized use of millage revenue as a report/attempt to expose illegal misuse to a public body | Plaintiff only disagreed with policy choices and did not identify any law or rule violation reported to a public body | Court: No; plaintiff failed to plead reporting a violation or a suspected violation of law to a public body and thus did not allege protected activity |
| Timeliness under MCL 15.363(1) (90-day filing requirement) | Challenge not central in opinion but timing relevant to some acts | Defendant relied on timing for events (e.g., removal as union president predates complaint by >90 days) | Court: Removal to patrol occurred well over 90 days before complaint; that act could not support WPA claim within statutory window |
| Standard for what constitutes WPA "adverse employment action" | Plaintiff urged broader retaliation standard (relying on federal decisions) | Defendant urged application of WPA text and objective/material adverse standard | Court: Apply WPA's statutory language; require objective, material harm (more than mere inconvenience) — Peña objective/material standard retained, WPA-specific framing required |
Key Cases Cited
- Maiden v. Rozwood, 461 Mich. 109 (establishes de novo review and C(8) pleading standard)
- Whitman v. City of Burton, 493 Mich. 303 (statutory interpretation de novo; enforce clear statutory language)
- Wurtz v. Beecher Metro Dist., 495 Mich. 242 (WPA requires showing of statutory adverse actions; return to WPA text)
- Peña v. Ingham County Road Comm’n, 255 Mich. App. 299 (objective/material adverse-action standard applied)
- White v. Burlington N. & Santa Fe Ry. Co., 364 F.3d 789 (6th Cir.) (federal en banc discussion rejecting "ultimate employment decision" limitation)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (Supreme Court) (materially adverse standard for retaliation under Title VII)
- Debano-Griffin v. Lake County, 493 Mich. 167 (prima facie elements for WPA claim)
- Dolan v. Continental Airlines/Continental Express, 454 Mich. 373 (WPA’s underlying purpose: protection of the public)