Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Whitman v. City of Burton

Court of Appeals of Michigan

July 9, 2015

BRUCE WHITMAN, Plaintiff-Appellee,
v.
CITY OF BURTON and CHARLES SMILEY, Defendants-Appellants

Editorial Note:

This opinion is subject to revision before final publication in the Michigan Court of Appeals reports.

Page 744

Genesee Circuit Court. LC No. 08-087993-CL.

Before: O'CONNELL, P.J., and SAAD and BECKERING, JJ. BECKERING, J. (dissenting).

Page 745

[311 Mich.App. 318] ON SECOND REMAND

Henry William Saad, J.

I. PROCEDURAL HISTORY[1]

This is the third time we have addressed this case on appeal. Our Court originally adjudicated this alleged Whistleblowers' Protection Act[2] (WPA) claim in 2011, [311 Mich.App. 319] and

Page 746

our opinion[3] reversed the jury award in Whitman's favor. We held that the Michigan Supreme Court's decision in Shallal [4] barred Whitman from claiming protection under the WPA, because he admitted that his motivation for asserting his entitlement to accumulated, unused sick-leave pay under a city ordinance was entirely personal and selfish.[5] We reasoned that, under Shallal, Whitman's private motivations for asserting defendants' noncompliance with the city ordinance disqualified him from WPA protections, because he did not act as a whistleblower under the meaning of the WPA. We dismissed his case on this narrow ground, and further held in a footnote that " overwhelming evidence of plaintiff's misconduct in office . . . more than justified the mayor's decision not to reappoint plaintiff as police chief ." [6]

The Michigan Supreme Court reversed, and disavowed what we thought was the principle articulated in Shallal on the dispositive nature of Whitman's private motivations.[7] It remanded the case and instructed us to address " all remaining issues on which [we] did not formally rule, including whether the causation element of the [WPA] has been met." [8]

Because our narrow 2011 ruling regarding Whitman's private motivation meant that we did not look at [311 Mich.App. 320] the larger--and, to our minds, more important--question of whether Whitman's conduct objectively promoted the public interest, we addressed and decided this issue on remand in 2014.[9] We held that the purpose of the WPA is to advance the public interest, and thus the statute protects only those plaintiffs whose actions, irrespective of their personal motivations, objectively advance the public interest. And because Whitman's conduct ran contrary to the public interest, rather than advancing the public interest, we held that Whitman was not protected by the WPA.

We further held, once again, but with fuller explanation, that Whitman's alleged whistleblowing activity was clearly not the reason the mayor refused to renew his four-year term as chief of police. Instead, the mayor's refusal to renew Whitman's four-year political appointment was a direct result of Whitman's misconduct during his previous term--misconduct that only came to the mayor's knowledge during his postelection review of his team of political appointees. It was this review, and the information it revealed, that motivated the mayor to refuse to reappoint Whitman to another four-year term as chief of police.

The day after we issued our second decision on appeal, the Michigan Supreme Court issued Wurtz v Beecher Metro Dist,[10] which held that WPA protections

Page 747

do not apply to " job applicants and prospective employees." [11] Then, on November 19, 2014, the Michigan Supreme Court vacated our 2014 decision and asked us to review our ruling in light of Wurtz.[12] After our review of [311 Mich.App. 321] Wurtz, we conclude that Whitman's claim must be dismissed under the holding and reasoning in that case.

Therefore, we now hold that Whitman's claim must be dismissed for any one or combination of the following reasons: (1) Wurtz requires its dismissal, (2) objectively, Whitman's conduct did not advance the public interest, but instead, it ran contrary to the public interest, and (3) the mayor's refusal to reappoint Whitman, a political appointee, to another four-year term as police chief was because of Whitman's misconduct in office, not the whistleblowing activity that allegedly took place long before his four-year term as chief had ended.

II. STANDARD OF REVIEW

A trial court's ruling on a motion for judgment notwithstanding the verdict (JNOV) is reviewed de novo on appeal. Garg v Macomb Co Community Mental Health Servs, 472 Mich. 263, 272; 696 N.W.2d 646 (2005). " When reviewing the denial of a motion for JNOV, the appellate court views the evidence and all legitimate inferences therefrom in the light most favorable to the nonmoving party to determine if a party was entitled to judgment as a matter of law." Genna v Jackson, 286 Mich.App. 413, 417; 781 N.W.2d 124 (2009).

III. ANALYSIS

A. PLAINTIFF IS NOT ENTITLED TO WPA PROTECTION

1. DEFENDANTS' ALLEGED WPA VIOLATION OCCURRED AFTER THE CONCLUSION OF PLAINTIFF'S TENURE AS POLICE CHIEF

a. LEGAL STANDARDS

MCL 15.362, the provision of the WPA under which plaintiff brought suit, states:

[311 Mich.App. 322] An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.

In Wurtz, the Michigan Supreme Court clarified that these protections do not apply to job applicants and prospective employees,[13] because a job applicant or prospective employee cannot be " discharged, threatened, or otherwise discriminated against regarding his or her compensation, terms, conditions, location, or privileges of employment" [14]--only a current employee can suffer such mistreatment.[15] In other words, the WPA applies

Page 748

to an employer's improper actions regarding an individual's protected conduct only when the conduct occurs during the course of his employment.[16]

Accordingly, when it adjudicates a claim under the WPA, Wurtz emphasizes the plaintiff's employment status at the time the alleged WPA violation occurred.[17] [311 Mich.App. 323] If a defendant committed the alleged WPA violation during the course of a plaintiff's employment, the plaintiff's claim may proceed. If the defendant committed the alleged WPA violation when the plaintiff was not employed by the defendant, or when the plaintiff was a job applicant or prospective employee, the plaintiff's claim must fail.[18] Under Wurtz, this classification--employed versus not employed (as a job applicant, prospective employee, or former employee)--is the only classification a court may use to assess whether the WPA provides protection to a plaintiff.[19] For purposes of this determination, it is inconsequential whether the plaintiff was an at-will employee, contract employee, or just-cause employee--the plaintiff is protected by the WPA only if the alleged WPA violation occurred during the course of his employment.[20]

The Michigan Supreme Court applied these principles to Wurtz, a contract employee who worked for a local water and sewage district under a fixed term.[21] Wurtz wished to continue in his position after termination of his contract term, but the district declined to [311 Mich.App. 324] renew his contract.[22] Wurtz then sued the district and alleged that it violated the WPA when it refused to renew his contract, because it supposedly did so in retaliation for actions he took during his employment.[23] The Michigan Supreme Court rejected Wurtz's claim because the WPA violation he claimed the district committed--its decision to not renew his contract--occurred after the conclusion of his contract term, when Wurtz was a job applicant or prospective employee.[24] Stated another way, because the WPA violation alleged by Wurtz did not take place during the course of his employment, Wurtz had no claim against the district under the WPA.[25]

In sum, Wurtz holds that when a plaintiff alleges that a defendant violated

Page 749

the WPA, a court must assess the claim by ascertaining whether the alleged WPA violation occurred during the course of the plaintiff's employment with the defendant. If the plaintiff was employed at the time of the alleged WPA violation, the plaintiff's case may proceed. If the plaintiff was not employed at the time of the alleged WPA violation, or was a job applicant or prospective employee at the time of the alleged WPA violation, the plaintiff's case must fail.[26] The plaintiff's classification while he was employed--i.e., as a contract, at-will, or just-cause employee--is irrelevant to the court's determination. The court's focus must be on whether the plaintiff, regardless of his classification, was employed by the defendant at the time the alleged WPA violation occurred.

b. APPLICATION

[311 Mich.App. 325] The charter of the city of Burton provides that:

The Mayor shall appoint all administrative officers of the city, except the City Attorney and City Auditor. The Mayor's appointments shall be subject to approval by an affirmative vote of four or more members of the Council. The Council shall act within thirty (30) days from the date of submission upon any appointments submitted by the Mayor for approval. [Burton Charter § 4.5(g); available at < http://www.mml.org/resources/information/charter/pdf/68.pdf> (accessed June 30, 2015) (http://perma.cc/U654-49A8 ).]

The chief of police is among the city's administrative officers. Burton Charter § 6.1(a). Most administrative officers, including the chief of police,

shall be appointed by the Mayor subject to the approval of the Council, and shall serve at the pleasure of the Mayor for indefinte [sic] terms, except that the Mayor shall reaffirm or appoint those administrative officers and other appointive officers provided in this charter within thirty (30) days from his election, and give Council notice of same. [Burton Charter § 6.2(b).]

Accordingly, for the chief of police to continue his employment after a mayoral election, he must be reappointed or reaffirmed to the position by the mayor, within 30 days of the mayor's election. This reappointment mechanism effectively means that a chief of police serves a four-year term, albeit " at the pleasure of the Mayor." [27]

Here, Whitman alleges that he engaged in protected activity under the WPA--his purported whistleblowing regarding the city's initial refusal to compensate him for unused sick leave--during the course of his four-year [311 Mich.App. 326] appointment as police chief. He says that the mayor retaliated against him for this whistleblowing, in violation of the WPA, when the mayor declined to reappoint him as police chief after the mayor's reelection in November 2007.

Under the express holding of Wurtz, Whitman may not bring a claim under the WPA.[28] Like Wurtz, Whitman alleges that defendants violated the WPA after the conclusion of his employment--i.e., after the conclusion of his four-year appointment as police chief.[29] He does not claim

Page 750

that he was " subject to a specific adverse employment action enumerated by the WPA" during the course of his employment.[30] As a candidate for reappointment to the office of police chief, Whitman was essentially a job applicant. His suit is premised on an alleged WPA violation committed by defendants after the termination of his four-year term as police chief.

Accordingly, Whitman, as a political appointee seeking reappointment, was not subject to the protections of the WPA at the time of the alleged WPA violation. Thus, his suit under the WPA has no merit. We therefore ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.