Employer Prevails On Whistleblower Claim By Employee



By: Carol G. Schley, Clark Hill PLC


In a reported decision, the Michigan Court of Appeals recently clarified the circumstances that constitute an “adverse employment action” sufficient to establish a claim under Michigan’s Whistleblower’s Protection Act (“WPA”).

In Smith v. City of Flint, 2015 Mich. App. 2061 (Nov. 5, 2015), the plaintiff was a Flint police officer who was employed full time as the police union president, handling grievances filed by police officers during the day shift on a full-time basis.  However, this position was eliminated in April 2012, by order of Flint’s emergency manager.  Despite this, the plaintiff continued handling union grievances full-time.

In late 2012, a millage was passed providing additional funds for public safety.  The plaintiff publicly complained that these millage funds were not being used by Flint to hire as many police officers as possible.  In March 2013, the police chief reassigned Plaintiff to an overnight road patrol position in a neighborhood Plaintiff asserted was one of Flint’s most dangerous.  Plaintiff then filed a WPA claim against his employer, claiming his reassignment was in retaliation for his public complaints about the use of millage funds.  The employer prevailed at the trial court on the grounds that Plaintiff’s reassignment did not constitute an “adverse employment action” under the WPA.

On appeal, the court noted that, to establish a WPA claim, Plaintiff was required to show:  (1) that he was engaged in a protected activity as defined by the act; (2) that the employer took an adverse employment action against him; and (3) that a causal connection existed between his protected activity and the adverse employment action.  Id. at *5.  First, focusing on the 2nd element, the court held that “abstract” adverse employment actions were insufficient to prove a claim, and instead the plaintiff was required “to show that he was discharged, threatened, or otherwise discriminated against, such that his compensation, terms, conditions, location or privileges of employment were affected.”  Id. at *9.  The court further held that the action taken against the plaintiff “must be more than a mere inconvenience or an alteration of job responsibilities, and there must be some objective basis for demonstrating that the change is adverse because a plaintiff’s subjective impressions as to the desirability of one position over another are not controlling.”  Id.

Applying this standard, the court held that plaintiff’s reassignment from handling union grievances to patrol duty was not an adverse employment action under the WPA, as the court did not see this reassignment as a material change in the “location” of plaintiff’s employment.  “We discern the statute’s reference to a change in location to be a significant, objective one, such as a move from one city to another or from one location to another of an employer with multiple offices.  Here, the area where officers patrol within the same city they swore to protect concerns job assignments, not a matter of location.  As a result, plaintiff’s assignment to a particular patrol duty within the city of Flint, objectively, is simply not covered by the WPA.”  Id. at *10-*11.

The court also held that Plaintiff could not establish a WPA claim on two other grounds:  (1) he failed to file his WPA claim within 90 days of the alleged adverse employment action as required by the statute; and (2) Plaintiff’s complaints about the city’s use of millage funds did not constitute a “protected activity” under the WPA, since his complaints did not concern an alleged violation of the law by the city, but instead merely his disagreement with legitimate policy decisions made by the city.  Id. at *13.

The Smith case is helpful to employers as it clarifies that an adverse employment action under the WPA must be based upon more than an employee’s subjective belief that a change in job responsibilities is adverse.  Instead, whether an action constitutes an adverse employment action as defined by the WPA is looked at from an objective point of view.  The Smith case also recognizes that routine job-related decisions by an employer (e.g., an adjustment in an employee’s work duties) may not rise to the level of an adverse employment action.  However, employers must be mindful that employees who report or who are planning to report a suspected violation of the law to authorities cannot be retaliated against by their employer based upon such reporting.  If you face a situation where an employee had engaged in such conduct, it is best to consult with legal counsel to ensure that no actions are taken against the employee that could give rise to a claim under the WPA.

Carol G. Schley is a member of the Detroit SHRM Legal Affairs Committee and an attorney at the law firm Clark Hill PLC.  She can be reached at cschley@clarkhill.com or (248)530-6338. 

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