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152844 - Kevin Smith v City of Flint

Kevin Smith,
Tom R. Pabst
(Appeal from Ct of Appeals)
(Genesee – Farah, J.)
City of Flint,
Stacy Erwin Oakes


Plaintiff Kevin Smith, a City of Flint police officer, spoke out against the city’s alleged misuse of millage funds. Smith claims that the city retaliated against him by reassigning him to less desirable hours and job duties. He sued the city, and included a claim that the city violated the Whistleblowers’ Protection Act. The WPA prohibits an employer from discharging or otherwise discriminating against an employee because the employee reports a violation or suspected violation of a rule, regulation, or law of this state or the United States.  MCL 15.362. To establish a prima facie case of a WPA violation, the plaintiff must set forth evidence that (1) the employee engaged in a protected activity; (2) the employee was discharged, threatened, or otherwise discriminated against regarding the employee’s compensation, terms, conditions, location, or privileges of employment; and (3) a causal connection existed between the plaintiff’s protected activity and the act of discharging, threatening or otherwise discriminating against the employee. The trial court dismissed the WPA claim, concluding that Smith did not establish that he suffered an “adverse employment action.” The Court of Appeals affirmed the trial court’s ruling in a split, published opinion. The majority held that Smith was required to demonstrate more than a mere inconvenience or alteration of job responsibilities, and that he did not allege sufficient facts to show that he suffered an actual adverse employment action. The dissenting judge agreed with the majority’s legal analysis, but would not have decided, as a matter of law, that Smith failed to satisfy the standard. Smith appealed. On June 10, 2016, the Supreme Court directed the Clerk to schedule oral argument on the application. The Supreme Court will consider whether the Court of Appeals applied the correct legal standard, whether Smith alleged sufficient facts to establish that he suffered an adverse employment action under the WPA, and whether Smith alleged sufficient facts to establish that he engaged in a protected activity under the WPA.