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Michigan Court of Appeals Clarifies Legal Requirements for Whistleblower Claims
The Michigan Court of Appeals recently ruled that a city’s failure to reappoint a political appointee to an administrative position after his term expired is not an “adverse employment action” that can give rise to liability under Michigan’s Whistleblower Protection Act (“WPA”). Whitman v City of Burton, Docket No. 294703 (July 9, 2015). The court also held that, under the WPA, “protected activity” does not include conduct that objectively serves an individual’s personal interest while harming the public’s interest.
The City of Burton employed Whitman as its police chief. Under the city charter, the police chief is classified as an administrative officer appointed by the mayor at the beginning of the mayor’s four-year term. The city charter also states that upon reelection, the mayor must reappoint administrative officers.
In 2003, at the start of the mayor’s initial four-year term, the city suffered financial hardships that led the mayor, along with several of his appointed administrative officers, to voluntarily decline wage increases and certain fringe benefits, including the accumulation of unused sick days. Whitman refused to follow the mayor’s lead and insisted that a city ordinance entitled him to his accumulated unused sick days. The city ultimately granted Whitman the contested benefit. Whitman’s conduct concerned the mayor, but operations continued without further conflict for the remainder of the mayor’s term.
When the mayor was reelected in 2006, he decided not to reappoint Whitman as the city’s police chief. The mayor based his decision on various factors concerning Whitman’s job performance, including complaints of misconduct.
Whitman filed a WPA claim against the city claiming that the mayor’s decision not to reappoint him as police chief was unlawfully motivated by his 2003 complaint about sick days. The WPA prohibits employers from discharging, threatening, or otherwise discriminating against employees who report violations or suspected violations of law committed by their employers. Whitman claimed his assertion that the city ordinance granted him the right to accumulate unused sick days constituted protected activity under the WPA.
The court dismissed Whitman’s WPA claim for three significant reasons. First, Whitman did not claim that he was subject to a specific adverse employment action during the course of his employment (i.e., during his initial four-year appointment). The court ruled that the WPA does not protect job applicants. The court also found that after his initial appointment expired, Whitman was a job applicant for the police chief position and, as a political appointee seeking reappointment, he was not subject to the protections of the WPA at the time the mayor decided not to reappoint him.
Second, the court found that Whitman was not entitled to the protections of the WPA because his alleged protected activity, as an objective matter, did not advance the public’s interest but, instead, advanced his own interests. The court ruled that the WPA protects individuals who advance the public’s interest by “blowing the whistle on” illegality, suspected illegality, or other corruption. The court found that the city ordinance providing for the accumulation of unused sick leave is not a law that protects the public’s interest but “rather an ordinance that reads much like a standard garden variety collective bargaining provision for wages and benefits.” The court opined that Whitman’s claim involved a simple disagreement regarding the proper interpretation of the city ordinance. The court noted that, objectively, Whitman’s complaint had nothing to do with protecting or advancing the public’s interest.
Third, the court concluded that, as a matter of fact, Whitman could not prove his WPA claim against the city. There was no evidence that the mayor was motivated by an intent to retaliate against Whitman because of his refusal 3-4 years earlier to waive the right to accumulate sick days. To the contrary, evidence existed that Whitman’s own misconduct while he was police chief was directly related to the mayor’s decision not to reappoint him.
Any time school officials are taking an adverse employment action against an employee who has, in the past, reported violations or suspected violations of law, care must be taken to ensure and document that the adverse employment action is supported by reasonable grounds unrelated to the employee’s protected reporting activity.