Whistleblower’s Claim Revived for the Second Time in Three Years

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By:  Karen L. Piper

Whistleblower Protection Act (WPA) cases can be challenging, as demonstrated by the ups and downs of Flint police officer Kevin Smith’s case.

The WPA protects employees against adverse employment actions in retaliation for reporting a violation or suspected violation of law, regulation or rule to a public body.  To establish a WPA claim, an employee must show:

            (1)        S/he was engaged in protected whistleblowing activity;

            (2)        The employer took an adverse employment action against the employee; and

            (3)        A causal connection between the protected activity and adverse action.

Smith was employed as a police officer in the Flint Police Department.  He was assigned to act as the Union President from February 2011 until after he publicly criticized how funds from a voter‑approved millage were being used.  As Union President, Smith worked 8:00 a.m. to 4:00 p.m. handling work‑related grievances.  The Union President position was eliminated by Flint’s Emergency Manager in April 2012, but Smith continued to function as Union President through 2012.

In November 2012, Flint voters approved a millage for public safety.  Smith subsequently complained publicly that the money was not being spent on hiring as many police officers as possible.  In March 2013, Smith was reassigned to undesirable hours (i.e., the night shift) at an undesirable location (i.e., road patrol in the northern end – the most dangerous area of the city).  Smith claimed he was the only police officer that was not allowed to work in the southern, less dangerous area of the city.  He also claimed that the night shift hours interfered with his work handling grievances.

Smith filed a whistleblower claim over his new assignment asserting he was reassigned in retaliation for his public complaints about how the millage funds were being spent.  The trial court dismissed this claim ruling that his reassignment was not an adverse employment action.  The Court of Appeals declined his appeal.  The Michigan Supreme Court directed the Court of Appeals to review the dismissal.  In a 2 to 1 split decision, the Court of Appeals agreed that the reassignment was not an adverse employment action.  The appeals court also ruled that Smith had not engaged in protected whistleblowing activity.

On January 17, 2017, the Michigan Supreme Court reversed the Court of Appeals’ decision.  It agreed with the dissenting judge that Smith had presented sufficient facts to support his claim that his reassignment was an adverse employment action.

To establish an adverse action under the WPA, an employee must show he was “discharged, threatened, or otherwise discriminated against such that his compensation, terms, conditions, location, or privileges of employment were affected.” Emphasis in original.  The dissenting Court of Appeals judge determined that Smith had met his burden of alleging facts to support adverse action: the change in assignment affected both his hours and location and the change was more than an inconvenience; it involved a material change in his responsibilities.  This case will be sent back to the Court of Appeals for further action, presumably a return to the trial court to decide whether Smith’s public criticism of how millage funds were being spent was protected whistleblowing activity, or trial.

This case has been pending for three-plus years.  It has been to the Michigan Supreme Court twice.  It is unknown whether the Emergency Manager consulted experienced employment counsel, such as the author, before reassigning Officer Smith.  If not, he should have.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law.  Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. February 2017.