Bruce Whitman v. City of Burton
Bruce Whitman v. City of Burton
Opinion of the Court
I. PROCEDURAL HISTORY
This is the third time we have addressed this case on appeal. Our Court originally adjudicated this alleged Whistleblowers’ Protection Act
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.
Because our narrow 2011 ruling regarding Whitman’s private motivation meant that we did not look at
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,
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 NW2d 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 NW2d 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:
*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,
Accordingly, when it adjudicates a claim under the WPA, Wurtz emphasizes the plaintiffs employment status at the time the alleged WPA violation occurred.
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.
In sum, Wurtz holds that when a plaintiff alleges that a defendant violated the WPA, a court must assess the claim by ascertaining whether the alleged WPA violation occurred during the course of the plaintiffs employment with the defendant. If the plaintiff was employed at the time of the alleged WPA violation, the plaintiffs 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 plaintiffs case must fail.
The charter of the city of Burton provides that:
[t]he 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.”
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-
Under the express holding of Wurtz, Whitman may not bring a claim under the WPA.
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 reverse the trial court’s denial of defendants’ request for JNOV.
2. PLAINTIFF DID NOT OB JECTIVELY ADVANCE THE PUBLIC INTEREST
Whitman is not entitled to protection under the WPA for an additional reason: his conduct, as an
In this case, Whitman’s actions are unquestionably and objectively contrary to the public interest. That is, regardless of his personal motivation, Whitman’s whistleblowing effort sought enforcement of a law that harmed, not advanced, the public interest.
The waiver of the benefit contained in 68-C, which plaintiff characterizes as a violation of law, has its origins in a severe financial crisis that afflicted the city of Burton in the early 2000s.
Only one department head objected to this public-spirited waiver of the perk — Whitman, then the chief of police.
We say “misuses” advisedly because the WPA is designed to ferret out violations of law that injure the public, especially when applied to public-sector defendants.
Also, whistleblowing assumes that an employee risks retaliation for uncovering the public employer’s misconduct. Here, there simply was no misconduct or illegality. The only conduct of the city employees that implicated 68-C was the department heads’ decision to waive the benefit provided by the ordinance, and Whitman’s refusal to honor that waiver. This is an employee’s insistence, plain and simple, that he get his perk — not an uncovering of corruption or illegality. And this disagreement about the legal effects of the waiver was satisfied, in Whitman’s favor, after the city sought legal counsel. Accordingly, Whitman’s citation of the ordinance was not whistleblowing. It was simply a disagreement regarding the proper interpretation of the city of Burton’s labor laws. That is, there was a disagreement about whether the administrative team could waive the perk provided by 68-C, and whether Whitman was bound by the group’s waiver. It had nothing to do with whistleblowing whatsoever.
That is why this is not the usual case. Reporting a violation of law normally constitutes conduct in the public interest.
Because he was not a whistleblower under the WPA, no juror could have legally found in favor of Whitman on his WPA retaliation claim. The trial court’s denial of defendants’ request for JNOV is accordingly reversed.
B. CAUSATION
We also held in our 2011 opinion, Whitman I, that
1. TRUST, NOT WHISTLEBLOWING
As noted, in 2003, the mayor’s administrative team voted to voluntarily take a wage freeze and forgo the perk of accumulated sick days to save the taxpayers money, and to avoid layoffs and reduced services.
A third party who attended Whitman’s June 2004 meeting with the mayor made handwritten notes of the discussion, which state: “Mayor = No Trust — 68-C (vacation) — lack of communication [,]”
Whitman’s claim has a serious temporal problem: he alleges that he was not reappointed in late 2007 for events that took place in late 2003 and early 2004. Our courts have taken pains to stress that the length of time between an alleged whistleblowing and an adverse employment action is not dispositive on the issue of retaliation — when those two events are close in time (i.e., days, weeks, or a few months apart).
It strains credulity to the breaking point to suggest, as Whitman does, that the mayor — who had the power to dismiss Whitman at any time, for any reason or no reason — was so upset with his alleged whistleblowing in late 2003 and early 2004 but allowed Whitman to continue as police chief for all of 2004, 2005, 2006, and into late 2007, and only then decided to “retaliate” against him. Indeed, when viewed in the context of the
3. BREAKS IN WHITMAN’S SUPPOSED CAUSAL CHAIN
The long period of time between Whitman’s supposed whistleblowing and the mayor’s decision not to reappoint him involves another aspect that is fatal to his claim: there are numerous breaks in the causal chain. Whitman’s first complaints regarding the administrative team’s waiver of 68-C in March 2003 clearly did not cause the mayor to retaliate. Indeed, the mayor reappointed Whitman as the chief of police in November of that same year. Whitman’s further attempts to secure compensation in January 2004 were addressed by the mayor, who first sought the advice of city counsel, and later, outside labor counsel. The mayor complied with that legal advice by paying Whitman almost $7,000 in additional compensation. And Whitman’s 2004 dispute with the mayor ended amicably — he remained chief for more than three years following that meeting, and by his own admission, he never heard mention of the 68-C dispute from the mayor and never was retaliated against during that time period. These intervening events — all positive developments for Whitman — raise serious doubts that his 68-C whistleblowing was a “determining factor” or “caus[e] in fact” of the mayor’s decision to not reappoint him. Matras, 424 Mich at 682.
4. WHITMAN’S MISCONDUCT LED TO ADVERSE EMPLOYMENT ACTION
In any event, Whitman has provided no evidence to
Whitman’s assertion must be weighed against the other factors in this case: (1) the mayor’s view of Whitman’s 68-C demands as a trust issue, not a retaliation issue, and certainly not whistleblowing, (2) the almost four-year interval between Whitman’s alleged whistleblowing and the purported retaliation, (3) the causal breaks in Whitman’s claim, and (4) the allegations of Whitman’s extensive misconduct. When Whitman’s assertion is weighed against these factors, the evidence is overwhelming that his so-called whistleblowing had no connection to the mayor’s decision to not reappoint him as the police chief. There is simply no way that a reasonable fact-finder, even when “view[ing] the evidence and all legitimate inferences ... in the light most favorable to the nonmoving party,” Genna, 286 Mich at 417, could find that retaliation was “one of the reasons which made a difference
IV. REPLY TO THE DISSENT
The dissent’s analysis betrays a basic misunderstanding of the nature and function of executive appointments in governmental administration. Again, the mayor of the city of Burton is required by the city charter to “reaffirm or appoint. . . administrative officers” to the city administration “within thirty (30) days from his election.” Burton Charter § 6.2(b). The city council is then required to confirm or deny the appointments “within thirty (30) days from the date of submission . . . .” Burton Charter § 4.5(g). Because the mayor is elected every four years, he is required by the city charter to reaffirm or appoint the city’s administrative officers every four years. Within that four-year span, the mayor may dismiss an administrative officer at any time. Burton Charter § 6.2(b). As a result, an administrative officer in the city of Burton has no expectation of continued employment. An administrative officer knows that his term cannot last longer than four years, because after the mayor’s election or reelection, an administrative officer must be reaffirmed to his position. And an administrative officer also knows that his term may be much shorter than four years— indeed, it may be ended at any time — because an administrative officer serves “at the pleasure of the mayor.”
Here, as we have explained in our opinion, Wurtz mandates that Whitman’s suit be dismissed. The mayor was reelected in November 2007. Upon the mayor’s reelection, Whitman’s term as police chief, which began in 2003, effectively ended. The city char
The dissent attempts to escape this obvious outcome with irrelevant appeals to emotion (“[Whitman] was a full-time, 32V2-year employee with the city of Burton”), misstatements of fact (“Smiley removed [Whitman] ... on November 27, 2007”), and basic misinterpretations of key terms (“[Whitman] enjoyed an ‘indefinite’ term of employment [as chief of police]”).
The last of these is particularly egregious. The true, noncolloquial, definition of “indefinite” is “not definite” — i.e., “having no exact limits.” Merriam-Webster’s Collegiate Dictionary (2014). This is exactly the way in which the word is used in the city of Burton’s city charter:
All other administrative officers 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) (emphasis added).]
Instead of using the correct dictionary definition of “indefinite” and adhering to the broader context of the
This interpretation is the exact opposite of what the word “indefinite” actually means in the context of the city charter. Again, an “indefinite” term of employment is one that is “not definite” — i.e., one that can end at any time — today, tomorrow, or any time before the conclusion of the four-year term. Accordingly, the city charter’s use of “indefinite” means that while a police chief may be employed for a full four-year term, he serves at the pleasure of the mayor and may be terminated at any time before the expiration of the four-year term. Therefore, Whitman had no basis for his expectation of continued employment. But most important to the application of Wurtz, the law of the city of Burton required Whitman to be reappointed (and approved by the city council) as the chief of police every four years, after the mayor’s reelection. Because the mayor chose not to reappoint Whitman as police chief after his term as police chief had expired, Whitman has no recourse under the WPA.
Finally, the dissent attempts to confuse matters by insinuating that we do not recognize that at-will employees are protected under the WPA. Of course we recognize the obvious proposition that an at-will employee, like any other employee, is protected under the WPA — for retaliatory actions taken against him when he is employed. Here, defendants never took retaliatory action against Whitman while he was employed as chief of police. Rather, the mayor chose to not reappoint Whitman after the mayor’s reelection in Novem
V. CONCLUSION
We hold that Whitman’s claim must be dismissed for any one or a combination of the following reasons: (1) Wurtz requires its dismissal, (2) objectively, Whitman’s conduct did not advance the public interest, but instead 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 a result of Whitman’s egregious misconduct, not the alleged whistleblowing activity that took place long before his four-year term as chief had ended.
Accordingly, because no reasonable fact-finder could legally find in favor of Whitman on his claim under the WPA, we reverse the trial court’s denial of defendants’ motion for JNOV and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
A summary of the facts relevant to this opinion can be found at Whitman v City of Burton, 293 Mich App 220, 222-228; 810 NW2d 71 (2011) (Whitman I), and at Whitman v City of Burton, 493 Mich 303, 306-311; 831 NW2d 223 (2013) (Whitman II).
MCL 15.361 et seq.
Whitman I, 293 Mich App 220.
Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997).
Specifically, Whitman first voiced his opposition to modification of the city ordinance at issue by stating that “[m]y current life style revolves around these very things [i.e., the benefit of receiving payment for accumulated leave time] that have been negotiated for me . . . .” See Whitman I, 293 Mich App at 225.
Id. at 232 n 1.
Whitman II, 493 Mich at 306.
See Whitman v City of Burton (On Remand), 305 Mich App 16; 850 NW2d 621 (2014) (Whitman III).
Wurtz v Beecher Metro Dist, 495 Mich 242; 848 NW2d 121 (2014).
Whitman v City of Burton, 497 Mich 896 (2014) (Whitman IV).
Wurtz, 495 Mich at 253.
Id. at 252 (“[A]s gleaned from the WPA’s express language, the statute only applies to individuals who currently have the status of an ‘employee.’ ”).
Id. at 252. See also id. at 252 n 16:
We recognize that plaintiff was an employee at the time he engaged in protected activity. Significantly, however, plaintiff*323 makes no claim that his employment contract was in any way breached or that he was subject to a specific adverse employment action enumerated by the WPA during his contract term. Rather, plaintiff maintains that because he engaged in protected activity during his contract term, he has a right under the WPA to renewal of his contract.
Of course, as the Michigan Supreme Court stated, at-will employees — like any other kind of employee — are protected under the WPA against WPA violations allegedly committed by their employer during the course of their employment. See id. at 256-257. However, at-will employees — like any other kind of employee — are not protected under the WPA against WPA violations allegedly committed by their employer after they are no longer employed. See id. at 253.
See id. at 253.
Mayoral elections take place every four years. Burton Charter § 4.2(b).
Wurtz, 495 Mich at 252.
As discussed in note 19 of this opinion, we recognize that if the mayor had terminated Whitman for whistleblowing activity during the course of Whitman’s four-year term as police chief, Whitman’s WPA claim might be valid. The reason Whitman’s claim is not valid is because he alleges a WPA violation committed by defendants after the conclusion of his four-year term.
Wurtz, 495 Mich at 252 n 16.
The Michigan Supreme Court did not address this aspect of the WPA in its 2013 opinion, nor did it do so in its 2014 order. Our understanding of the Supreme Court’s statement that Whitman “engaged in conduct protected under the WPA,” Whitman II, 493 Mich at 320, is that this protection is predicated on a narrow reading of the WPA — namely, one that only analyzes the relevancy of a plaintiffs personal motivations for “blowing the whistle.” Our 2011 opinion, reversed by our Supreme Corut, only addressed this discrete aspect of the WPA.
Because we did not analyze the overarching issue in our 2011 opinion — that is, whether the WPA only protects conduct that objectively advances the public interest — the Supreme Court did not address that issue in its 2013 decision. Because the Supreme Corut instructed us in its 2013 remand to consider “all remaining issues on which [we] did not formally rule,” we discussed this aspect of the WPA in the opinion issued, and vacated, in 2014, and do so again here. Id. at 321.
In any event, our Court has noted the distinction between an employee’s personal motives in reporting legal violations and reporting that actually advanced the public interest. See Phinney v Perlmutter, 222 Mich App 513, 554; 564 NW2d 532 (1997) (“In addition, whether plaintiff sought personal gain in making her reports, rather than the public good, is legally irrelevant and need not be addressed except to note that the reporting of misconduct in an agency receiving public money is in the public interest”) (emphasis added). Phinney’s holding on an unrelated matter was abrogated by Garg, 472 Mich at 290. (Garg overruled Sumner v Goodyear Tire & Rubber Co, 427 Mich 505; 398 NW2d 368 (1986), on which Phinney relied for its analysis of the continuing violations doctrine.)
See Burton Ordinance 68-25C, § 8(1) (“68-C”). As noted by the Supreme Court, “Burton’s ordinance numbering and policy regarding unused leave time have changed since the time of the trial of this case.” Whitman II, 493 Mich at 306 n 3. We agree with the Supreme Court: “[b]ecause those changes are not relevant to our analysis, this opinion refers to the ordinance numbering and language as it was introduced during trial.” Id.
Whitman I, 293 Mich App at 224.
See Whitman II, 493 Mich at 307.
Id., at 307. It appears that Whitman attended the March 2003 meeting when the department heads decided to waive 68-C, but it is unclear whether Whitman voiced an opinion on the waiver at the meeting.
“The [WPA] encourages employees to assist in law enforcement. .. with an eye toward promoting public health and safety. The underlying purpose of the [WE4] is protection of the public. The [WPA] meets this objective by protecting the whistleblowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law. Without employees who are willing to risk adverse employment consequences as a result of whistleblowing activities, the public would remain unaware of large-scale and potentially dangerous abuses.” Dolan v Continental Airlines I Continental Express, 454 Mich 373, 378-379; 563 NW2d 23 (1997) (quotation marks and citations omitted; emphasis added; alteration omitted).
Our sister states’ jurisprudence interpreting their whistleblower statutes recognize the distinction between reported legal violations that affect the public interest (which are protected) and reported legal violations that affect solely private interests (which are not protected). Though
To prevail under the WPA, Whitman must “establish a causal connection between [the] protected conduct and the adverse employment decision by demonstrating that his employer took adverse employment action because of his protected activity.” Whitman II, 493 Mich at 320. In the absence of direct evidence of retaliation (which Whitman
Whitman I, 293 Mich App at 232 n 1.
Whitman II, 493 Mich at 309 (quotation marks omitted; alteration in original).
Id.
It is difficult to see how a statement the mayor allegedly made after he had already declined to reappoint Whitman could influence his decision not to reappoint Whitman.
See, for example, West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003) (holding that to satisfy the causation requirement under the WPA, a plaintiff “must show something more than merely a coincidence in time between protected activity and adverse employment action”); Tuttle v Metro Gov’t of Nashville, 474: F3d 307, 321 (CA 6, 2007) (stating that “[t]he law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim”); and Shaw v City of Ecorse, 283 Mich App 1, 15; 770 NW2d 31 (2009) (noting that “[a] temporal connection between protected activity and an adverse employment action does not, in and of itself, establish a causal connection”).
In its opinion, the United States Court of Appeals for the Sixth Circuit noted that “[o]ur review of the law shows that multiyear gaps between the protected conduct and the first retaliatory act have been insufficient to establish the requisite causal connection.” Fuhr, 710 F3d at 676. This observation is correct; courts interpreting our sister states’ whistleblower laws and jurisprudence have made similar observations. A long time span between the alleged whistleblowing and supposed retali
Again, Burton Charter § 6.2(b) states that the chief of police serves “at the pleasure of the mayor.”
Again, Burton Charter § 6.2(b) states:
All other administrative officers 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.
See Whitman II, 493 Mich at 309; Whitman I, 293 Mich App at 227. Whitman admitted at trial that he used a city computer to exchange sexually explicit messages with a woman who was not his wife.
Whitman I, 293 Mich App at 227.
Dissenting Opinion
(dissenting). As noted by the majority, this matter is before the Court for a third time. Once again, I must disagree with the majority opinion. In addition to my conclusion that Wurtz v Beecher Metro Dist, 495 Mich 242; 848 NW2d 121 (2014), does not impact the outcome of this case, I disagree with the majority’s analysis regarding the requirements of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and the majority’s attempt to engraft language that does not exist into the act. In its first opinion in
The primary purpose of the Supreme Court’s latest remand order in this case, Whitman v City of Burton, 497 Mich 896 (2014) (Whitman TV), was to enable this Court to determine whether Wurtz impacts the outcome. In Wurtz, 495 Mich at 244, our Supreme Court evaluated whether the WPA applies to a fixed-term contract employee “whose term of employment has expired without being subject to a specific adverse employment action identified in the WPA and who seeks reengagement for a new term of employment . . . .” Noting that such an employee “occupies the same legal position as a prospective employee,” and that “[t]he WPA, by its express language, only applies to current employees” and “offers no protection to prospective employees,” the Court concluded that the
I respectfully dissent from the ruling of my colleagues because I would find that Whitman’s employment situation was considerably different from, and distinguishable from, that of the plaintiff in Wurtz, and that Whitman was protected by the WPA. Unlike the plaintiff in Wurtz, Whitman was not a fixed-term employee whose contract was allowed to expire in accordance with the terms of the agreement. Instead, he was a full-time, 32V2-year employee with the city of Burton who enjoyed an “indefinite” term of employment, much like any other at-will employee protected by the WPA, and who was not reaffirmed in his position as the chief of police because, according to the evidence and the jury’s conclusion at trial, the mayor retaliated against him due to his whistleblowing activities. As such, I remain with my findings and conclusions on all pertinent appellate issues in this case as set forth in my prior dissents, Whitman I, 293 Mich App 220, and Whitman v City of Burton, 305 Mich App 16; 850 NW2d 621 (2014) (Whitman III).
I. WURTZ
In Wurtz, the plaintiff, Richard Wurtz, entered into a fixed-term employment contract with the Beecher Metropolitan District, which manages water and sewage for a portion of Genesee County. Wurtz, 495 Mich at 244-245. Wurtz contracted to serve a 10-year term as the
The Supreme Court granted leave to appeal and framed one of the legal issues in dispute as “whether the plaintiff suffered an adverse employment action under the Whistleblower Protection Act (WPA), MCL 15.361 et seq., when the defendants declined to renew or extend the plaintiffs employment contract, which did not contain a renewal clause beyond the expiration of its ten
The relevant provision of the WPA, MCL 15.362, states as follows:
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*348 public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.
Our Supreme Court noted that the WPA “only applies to individuals who currently have the status of an ‘employee,’ ” Wurtz, 495 Mich at 252, and because Wurtz made “no claim that his employment contract was in any way breached or that he was subject to a specific adverse employment action enumerated by the WPA during his contract term,” his claim was not covered by the WPA. Id. at 252 n 16. The Court noted that “[w]hile the ADEA[
Our Supreme Court emphasized, however, the limited nature of its holding and made clear that the WPA “does protect” against prohibited employer actions both at-will employees, who “stand [] squarely within the WPA’s protections,” and employees working under fixed-term contracts with respect to an employee’s service under such a contract. Id. at 256-257.
II. APPLICATION OF WURTZ TO WHITMAN
That brings us to the present case. Whitman testi
A. PERTINENT CHARTER PROVISIONS DEFINING WHITMAN’S EMPLOYMENT RELATIONSHIP
Smiley testified that pursuant to the city charter, within 30 days of a mayor’s election, the mayor must submit the names of “the clerk, the fire chief, the police chief, the assessor, [and] the treasurer ... to the City Council” to be confirmed by the council. In this regard, the city charter provides that city administrative officers are “the Mayor, the Clerk, the Treasurer, the Attorney, the Assessor, the Chief of Police, the Fire Chief, and a Board of Review.” Burton Charter § 6.1(a).
Section 6.2(b) provides that
[a] 11 other administrative officers [except the City Attorney and the City Auditor] 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. [Emphasis added.]
B. APPLICABILITY OF THE WPA TO WHITMAN’S EMPLOYMENT
I disagree with the majority’s conclusion that this case fits so neatly into the rule established in Wurtz. I begin by noting the significant ways in which this case is different from Wurtz. The plaintiff in Wurtz was employed pursuant to a 10-year contract with no renewal clause. The contract contained no provisions for changing its end date or for otherwise renewing the term of Wurtz’s employment. Thus, nothing required the employer to make a choice about the plaintiffs employment; the employment simply expired. The end of the plaintiffs employment relationship was a fait accompli. Any hope the plaintiff had of employment after the expiration of the 10-year term was in striking up a new term of employment. In this sense, given the terms of the plaintiffs employment agreement, he was nothing more than a prospective employee. As the dissenting opinion (which was ultimately embraced by the Supreme Court) pointed out when the Wurtz case was before this Court:
The WPA requires the existence of an employment relationship. By plaintiffs own admission, defendants scrupu*351 lously adhered to the terms of his contract. Plaintiff now seeks damages because defendants abided by the terms of his employment contract. Plaintiffs position is illogical and lacks any support in our jurisprudence. Absent a contractual obligation or legal duty to consider an extension or renewal of an employment contract, a cause of action under the WPA is unavailing when a contractual employee finishes a fixed-term contract. [Wurtz v Beecher Metro Dist, 298 Mich App 75, 91; 825 NW2d 651 (2012) (K. F. KELLY, J., dissenting), rev’d 495 Mich 242; 848 NW2d 121 (2014) (emphasis added).]
I respectfully suggest that the instant case falls squarely within the exception set forth in the dissenting opinion of our Court in Wurtz, and as expressly carved out by our Supreme Court when it held that the ruling in Wurtz dealt only with a fixed-term contract that “did not contain a renewal clause beyond the expiration of its ten-year term.” Wurtz, 494 Mich at 862 (emphasis added). See also Wurtz, 495 Mich at 258 n 32. Here, in contrast to Wurtz’s fixed-term contract, the city of Burton’s charter contained a clause providing that the chief of police’s term of employment “shall be indefinite,” § 6.1(c), as well as a clause pertaining to the renewal of that “indefinte [sic] term]],” § 6.2(b). Notably, § 6.2(b) of the city of Burton’s charter provided that Whitman’s employment was indefinite, “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.”
It is the existence of the choice, mandated by the renewal clause, that takes this case outside the ambit of Wurtz and brings Whitman within the protection of the WPA. Under the city of Burton’s charter, WTdtman’s term of employment was expressly and repeatedly defined as “indefinite,” and it was only to be reevaluated at the time a mayor won reelection. Like any at-will employee, Whitman could certainly be fired at any time, as he served at the pleasure of the mayor — this simply means that the mayor was delegated the authority to choose several of the city’s employees who served as his or her administrative officers. In general, Whitman was, for all intents and purposes, an at-will employee, and such employees are protected by the WPA. Wurtz, 495 Mich at 256-257. Notably, upon a mayor’s reelection, § 6.2(b) imposed an obligation or duty on the mayor to act and to make a decision about his administrative officers’ continued employment. Section 6.2(b) provides 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.” Such a decision was mandated, as evidenced by the use of the word “shall” in § 6.2(b). Burton Ordinance § 10.05(B) (defining the word “shall” to mean that “[t]he act referred to is
Although police chiefs often serve at the pleasure of their mayor, it is also true that police officers often attain such a position after years of service in law enforcement, and it becomes the capstone of their careers. Many serve for one or more decades in the position and retire from it at the end of their careers. To be sure, Whitman was not entitled to serve as long as he wished in the role of chief of police. He could be fired at any time and for any reason that did not violate the law. But given the language of the city of Burton’s charter, I would hold that Whitman was serving within the bookends of his employment and that the WPA protected him from being fired or not reaffirmed by Smiley based on any discriminatory reasons. To interpret the applicability of the WPA as the majority suggests, in addition to being incorrect in my opinion, would potentially compromise the role of the chief of police, as the police chief could jeopardize his or her employment if he or she did not follow the mandates of the mayor, which might cause the police chief to ignore a violation of a law or regulation or rule so as to not risk being fired. That cannot be what the enactors of the WPA intended.
Because Whitman held an indefinite term of employment that carried with it the express option of being
III. ADOPTION OF THE ANALYSIS IN MY PRIOR DISSENTS
In light of the Supreme Court’s opinion in Whitman II, 493 Mich 303, and its decision to “vacate the
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, apolitical 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. [Emphasis added.]
Nothing in the plain language of the statute requires a court or a jury to decide as a matter of fact whether the law or regulation or rule objectively advances the public interest. No qualitative analysis is required to decide which law or regulation or rule is worthy of being covered by the WPA. The plain language of MCL 15.362 does not remotely suggest that some laws are included and others are not. As the Supreme Court pointed out in Whitman II, 493 Mich at 311-312:
*356 When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most reliable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplus-age or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent.
The plain and unambiguous language of the WPA, as is, “meets its objective of protecting the public,” id. at 318, and “further judicial construction” is neither required nor permitted, id. at 312. The Supreme Court also admonished that “there is no ‘primary motivation’ or ‘desire to inform the public’ requirement contained within the WPA,” and such a requirement cannot be judicially imposed — “[t]o do so would violate the fundamental rule of statutory construction that precludes judicial construction or interpretation where, as here, the statute is clear and unambiguous.” Whitman II, 493 Mich at 313.
Despite the Supreme Court’s explicit and repeated admonitions not to consider a plaintiffs motives when determining whether a plaintiff has engaged in protected activity under the WPA — because such motive is irrelevant to the issue — the majority opinion attempts to place an invisibility cloak over its effort to do just that. Imposing on MCL 15.362 a new, judicially created requirement to evaluate whether, in fact, the law or regulation or rule at issue in the WPA action actually serves the public interest, brings motive — or purpose— back into the equation. For example, the majority describes Whitman’s attempt to enforce Ordinance
Even if the majority has correctly engrafted a new requirement into the language of MCL 15.362, I disagree that Whitman’s actions were “unquestionably and objectively contrary to the public interest” and “harmed, not advanced, the public interest,” as characterized by the majority. As I noted in my prior dissenting opinions, seeking to balance a budget through violating one of the city’s own ordinances hardly seems to serve the public interest. Whitman I, 293 Mich App at 248 (Beckering, J., dissenting). As the chief of police, Whitman was fulfilling his duty to uphold the law, which was certainly in the public interest. Id. The public interest is served when a violation of the law is reported. Whitman III, 305 Mich App at 46 (BECKERING, J., dissenting); see also Dolan v Continental Airlines / Continental Express, 454 Mich 373, 378 n 9; 563 NW2d 23 (1997). And while the city may save expenses by ignoring the requirements of Ordinance 68-C, the public will literally not be served on the days the public servants subject to the ordinance are absent from work, taking their allotted sick, personal, and vacation time in
I could, like the majority, reiterate the arguments I set forth in my prior dissenting opinions. To do so, however, would be purely repetitive, as nothing has changed the analysis. Consequently, to spare the reader the redundancy, I adopt and remain with my previous findings and conclusions on all pertinent appellate issues in this case. See Whitman I, 293 Mich App 220; Whitman III, 305 Mich App 16.
IV. CONCLUSION
Because I conclude that Wurtz does not affect the outcome of this case, I would affirm the trial court’s order awarding judgment to Whitman in keeping with the jury’s verdict. As set forth in my prior dissents, the trial court did not err in denying defendants’ motion for JNOV. See Whitman I, 293 Mich App at 237-239 (BECKERING, J., dissenting); Whitman III, 305 Mich App at 41-47 (BECKERING, J., dissenting). There was sufficient evidence of causation to create a material question of fact for the jury. See Whitman I, 293 Mich App at 240-242 (BECKERING, J., dissenting); Whitman III, 305 Mich App at 47-57 (BECKERING, J., dissenting). The trial court did not abuse its discretion in denying defendants’ motion for a new trial. See Whitman I, 293 Mich App at 250-252 (BECKERING, J., dissenting). And the trial court did not err by concluding that Smiley is not entitled to a setoff. Id. at 252-253. Finally, for the reasons stated above, I strongly disagree with the majority’s conclusions that Whitman did not engage in protected activity and that he was not a whistleblower. Such conclusions conflict with our Supreme Court’s earlier rulings and dangerously distort the WPA.
The Supreme Court further noted that “the plain language of MCL 15.362 controls, and we clarify that a plaintiffs motivation is not relevant to the issue whether a plaintiff has engaged in protected activity and that proof of primary motivation is not a prerequisite to bringing a claim. To the extent that Shallal [u Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997)] has been interpreted to mandate those requirements, it is disavowed.” Whitman II, 493 Mich at 306. See also id. at 313, 318-319, 321. As the Supreme Court pointed out in its opinion, id. at 314-319, and as I addressed in my dissenting opinion in Whitman I, 293 Mich App at 232-250 (Beckering, J., dissenting), Shallal and related caselaw focused on causation and the failure to establish a causal connection between a plaintiffs firing and the protected activity.
As noted by the Supreme Court in Whitman II, 493 Mich at 313, “[t]o do so would violate the fundamental rule of statutory construction that precludes judicial construction or interpretation where, as here, the statute is clear and unambiguous.” The fact that the majority's new requirement of “advanc[ing] the public interest” is seen nowhere else in the caselaw, from what I could ascertain, further supports the conclusion that the majority is overstepping its bounds. As the Supreme Court noted, the plain and unambiguous language of the WPA, as is, “meets its objective of protecting the public .. . .” Id. at 318.
Age Discrimination in Employment Act, 29 USC 623(a)(1).
Title VII of the federal Civil Rights Act, 42 USC 2000e-2(a)(l).
Smiley, who was first elected mayor in 1991, testified that after the previous police chief retired in 2002, he formed a search committee and ultimately selected Whitman from among the top two or three candidates “because he was a Burton officer. I really thought we should promote within.” After Smiley was reelected in 2003, he reaffirmed Whitman as the chief of police. What was described in detail in earlier opinions of this Court need not be rehashed here. Whitman presented evidence at trial to establish that he engaged in whistleblowing activities in 2003 and 2004 that raised the ire of Smiley and almost got 'Whitman fired in 2004. After Smiley was reelected in November 2007, he decided not to reaffirm Whitman as the police chief. The jury concluded that this decision was motivated in part by Whitman’s whistleblowing activities.
Contrary to the characterization set forth in the majority opinion, plaintiff was not appointed to “a four-year term” or a “four-year appointment” as the chief of police. Rather, it was Mayor Smiley who held a four-year term. Upon his election, the city charter tasked him with deciding whose names to submit to the City Council to serve as his
This is not to imply that a renewal clause offers an at-will employee such as Whitman any greater protections than those of any other at-will employee. Rather, I would simply hold that the choice an employer makes about a renewal clause is within the bookends of the at-will employee’s employment.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.