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A Better Partnership
November 11, 2015

COA: Under the Whistleblowers’ Protection Act, an adverse employment action must be more than an a mere inconvenience

In Smith v. City of Flint, No. 320437, the Michigan Court of Appeals held that, in concluding whether a retaliatory action under the Whistleblowers’ Protection Act (“WPA”) was committed, an adverse employment action must be shown to be more than a mere inconvenience.  Moreover, it must be shown that there is some objective basis for proving that the action is adverse.  The Court further held that a plaintiff’s subjective impressions regarding the adverse change are not controlling in its analysis.
 
Plaintiff, a police officer with the Flint Police Department, was the president of the City of Flint Police Officers Union.  In 2012, his position as president was eliminated by Flint’s emergency manager, but plaintiff remained in his position as a police officer with the city.  Later that year, Flint voters passed a millage to collect funds for public safety; plaintiff publically criticized the use of the funds collected from the millage.  In 2013, Plaintiff was placed on road patrol in Flint’s north end.  Plaintiff claimed that defendant assigned him to road patrol in a particularly bad section of Flint in retaliation against him for publicly criticizing the use of funds from the millage; he filed suit against defendant for retaliation under the WPA.  Defendant moved for summary disposition, which was granted by the trial court.
 
On order from the Michigan Supreme Court, the Court of Appeals addressed whether the plaintiff established a prima facie case for retaliation under the WPA with respect to the second element; namely, whether the plaintiff alleged sufficient facts to demonstrate that the defendant took an adverse employment action against him.  The Court held that the plaintiff must demonstrate one of the specific adverse employment actions listed in the WPA, in this case a change of “location.”  Furthermore, the Court concluded that an adverse employment action, regarding plaintiff’s location must be more than a mere inconvenience and there must be some objective basis for demonstrating the adverse change.  The Court found that the plaintiff’s assignment to road patrol in a particular section of the city fell within the discretion of the police department and was part of plaintiff’s job duties.  Therefore, the Court affirmed the trial court’s grant of defendant’s motion for summary disposition.
 
Additionally, the Court addressed the first prong of the prima facie case for retaliation under WPA, particularly, whether plaintiff was engaged in “protected activity.”  The Court found that plaintiff did not establish that he was engaged in protected activity because his mere disagreement with the use of funds from the millage does not mean that the city engaged in wrongful conduct.  Therefore, plaintiff was not considered a “whistleblower” under the WPA and was not engaged in protected activity.
 
Judge Fort Hood dissented from the majority opinion.  She focused in particular on the fact that plaintiff alleged that he was the only patrol officer assigned exclusively to the north section of Flint, a particularly dangerous section, and she would have found that a question of fact existed as to whether defendant discriminated against plaintiff regarding terms of his employment.

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