Bruce Whitman v. City of Burton ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
BRUCE WHITMAN, FOR PUBLICATION
July 9, 2015
Plaintiff-Appellee, 9:00 a.m.
v No. 294703
Genesee Circuit Court
CITY OF BURTON and CHARLES SMILEY, LC No. 08-087993-CL
Defendants-Appellants.
ON SECOND REMAND
Before: O’CONNELL, P.J., and SAAD and BECKERING, JJ.
SAAD, J.
I. PROCEDURAL HISTORY1
This is the third time we have addressed this case on appeal. Our Court originally
adjudicated this alleged Whistleblower Protection Act2 (WPA) claim in 2011, and our opinion3
reversed the jury award in plaintiff’s favor. We held that the Michigan Supreme Court’s Shallal4
decision barred plaintiff from claiming protection under the WPA, because he admitted that his
motivation for asserting entitlement to accumulated, unused sick-leave pay under a city
ordinance was entirely personal and selfish.5 We reasoned that, under Shallal, plaintiff’s private
motivations for asserting defendant’s non-compliance with the city ordinance disqualified him
1
A summary of the facts relevant to this opinion can be found at Whitman v City of Burton, 493
Mich 303, 306–311; 831 NW2d 223 (2013), and at Whitman v City of Burton, 293 Mich App
220, 222–228; 810 NW2d 71 (2011).
2
MCL 15.361, et seq.
3
Whitman, 293 Mich App at 220.
4
Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604; 566 NW2d 571 (1997).
5
Specifically, plaintiff first voiced his opposition to modification of the city ordinance at issue
by stating that “my current life style revolves around these very things [i.e., additional payments]
that have been negotiated for me.” See Whitman, 293 Mich App at 225.
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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 his
alleged whistleblowing activity was not the cause of the mayor’s refusal to grant him another
four-year term as chief of police.6
The Michigan Supreme Court reversed, and “disavowed” what we thought was the
principle articulated in Shallal on the dispositive nature of plaintiff’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 plaintiff’s private motivation meant that we
did not look at the larger—and, to our mind, more important—question of whether plaintiff’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 plaintiff’s conduct ran contrary to the
public interest, rather than advancing the public interest, we held that plaintiff was not protected
by the WPA.
We further held, once again, but with fuller explanation, that plaintiff’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 plaintiff’s four-year political
appointment was a direct result of plaintiff’s misconduct during his previous term—misconduct
which only came to the mayor’s knowledge during his post-election review of his team of
political appointees. It was this review, and the information it revealed, that motivated the mayor
to refuse to reappoint plaintiff 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 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 Upon
review of Wurtz, we conclude that plaintiff’s claim must also be dismissed under its holding and
reasoning.
6
Whitman, 293 Mich App at 232 n 1.
7
Whitman, 493 Mich at 306.
8
Whitman, 493 Mich at 321.
9
See Whitman v City of Burton (On Remand), 305 Mich App 16; 850 NW2d 621 (2014).
10
495 Mich 242; 848 NW2d 121 (2014).
11
Wurtz, 495 Mich at 253.
12
Whitman v City of Burton, 497 Mich 896; 855 NW2d 746 (2014).
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Therefore, we now hold that plaintiff’s claim must be dismissed for any one or
combination of the following reasons: (1) Wurtz requires its dismissal; (2) objectively, plaintiff’s
conduct did not advance the public interest, but instead ran contrary to the public interest; and (3)
the mayor’s refusal to reappoint plaintiff, a political appointee, to another four-year term as
police chief, was because of plaintiff’s misconduct, 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 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
1A. LEGAL STANDARDS
MCL 15.362, the provision of the WPA under which plaintiff brought suit, states:
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 This is because a job applicant or prospective
employee cannot be “discharged, threatened, or discriminated against . . . regarding . . .
compensation, terms, conditions, location, or privileges of employment”14—only a current
13
Wurtz, 495 Mich at 253.
14
Wurtz, 495 Mich at 251.
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employee can suffer such mistreatment.15 In other words, an employee only receives WPA
protections from an employer’s actions that occurred during the course of his employment.16
Accordingly, when it adjudicates a claim under the WPA, Wurtz instructs a court to look
to the plaintiff’s employment status at the time the alleged WPA violations occurred.17 If the
defendant committed the alleged WPA violations during the course of plaintiff’s employment,
plaintiff’s claim may proceed. If the defendant committed the alleged WPA violations when
plaintiff was not employed by the defendant, or when plaintiff was a job applicant or prospective
employee,18 plaintiff’s claim must fail. Under Wurtz, this classification—employed vs not
employed (be it 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 the 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 will only receive protection
under the WPA 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 After the termination of his
contract term, Wurtz wished to continue in his position, but the district declined to renew his
contract.22 Wurtz then sued the district, and alleged that it violated the WPA when it refused to
15
Wurtz, 495 Mich at 253.
16
Wurtz, 495 Mich at 252 (“as gleaned from the WPA’s express language, the statute only
applies to individuals who currently have the status of an ‘employee’ ”).
17
Wurtz, 495 Mich at 252. See also Id., n 16:
We recognize that plaintiff was an employee at the time he engaged in protected
activity. Significantly, however, plaintiff 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 the renewal of his contract.
18
Wurtz, 495 Mich at 253.
19
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 Wurtz, 495 Mich at 256. 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 Wurtz,
495 Mich at 253.
20
Wurtz, 495 Mich at 253.
21
Wurtz, 495 Mich at 245.
22
Wurtz, 495 Mich at 246–247.
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renew his contract, because it supposedly did so in alleged 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 the WPA, a
court must assess the claim by ascertaining whether the alleged WPA violation occurred during
the course of plaintiff’s employment with defendant. If plaintiff was employed at the time of the
alleged WPA violation, plaintiff’s case may proceed. If plaintiff was not employed at the time of
the alleged WPA violation, or was a job applicant or prospective employee26 at the time of the
allged WPA violation, plaintiff’s case must fail. Plaintiff’s classification while he was an
employee—i.e., as contract, at-will, or just-cause—is irrelevant to the court’s determination,
which focuses on whether plaintiff, regardless of his classification, was employed by defendant
at the time the alleged WPA violation occurred.
1B. APPLICATION
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); see
(accessed June
30, 2015).]
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).]
23
Wurtz, 495 Mich at 247.
24
Wurtz, 495 Mich at 258–259.
25
Wurtz, 495 Mich at 258–259.
26
Wurtz, 495 Mich at 253.
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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 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 that he was “subject to a specific adverse employment action enumerated by the WPA”
during the course of his employment. Wurtz, 495 Mich at 252 n 16. 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 political appointee seeking reappointment, was not subject to
the protections of the WPA at the time of the alleged WPA violation. His suit under the WPA
thus has no merit. We therefore reverse the trial court’s denial of defendants’ request for JNOV.
2. PLAINTIFF DID NOT OBJECTIVELY ADVANCE THE PUBLIC INTEREST
Whitman is not entitled to protection under the WPA for an additional reason: his
conduct, as an objective matter, did not advance the public interest.30 Because the WPA protects
27
Mayoral elections take place every four years. Burton Charter § 4.2(b).
28
Wurtz, 495 Mich at 252.
29
As discussed in n 19 supra, we note that had the mayor 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
complains of a WPA violation allegedly committed by defendants after the conclusion of his
four-year term.
30
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 plaintiff
“engaged in conduct protected under the WPA,” Whitman, 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 plaintiff’s personal motivations for “blowing the whistle.” Our reversed 2011
opinion only addressed this discrete aspect of the WPA.
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those who protect the public interest by blowing the whistle on illegality, and laws in general are
an expression of public policy for the benefit of the public, there is typically no question that
reporting a violation of law advances the public interest. But this is not always true, and is
certainly not true here.
In this case, plaintiff’s actions are unquestionably and objectively contrary to the public
interest. That is, regardless of his personal motivation, his “whistleblowing” effort sought
enforcement of a law that harmed, not advanced, the public interest.
The law in question, Burton ordinance 68-C, is not a law that protects the public interest,
but rather an ordinance that reads much like a standard, garden-variety collective-bargaining
provision for wages and benefits.31 It is simply a recitation that sets forth the wages and benefits
for administrative, non-unionized employees of the city of Burton. Normally, an employee must
use sick days or vacation days, or lose them. But under some collective-bargaining agreements
and employment policies, employees may “accumulate” these days and then get paid for all such
days not used. This perk is generally found in collective-bargaining agreements for unionized
employees. But here, this benefit—along with a statement of wages and matters like dental
insurance—were codified in 68-C.
The waiver of the benefits 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.32 During this time period, the city’s department heads—who obviously
benefited from 68-C—voted as a group, not only to take a wage freeze, but to forgo this perk to
avoid harmful layoffs and reduced services to the public.33 In other words, the administrative
Because we did not analyze the overarching issue in our 2011 opinion—namely, whether the
WPA only protects conduct that objectively advances the public interest—the Supreme Court did
not address this issue in its 2013 decision. Because the Supreme Court 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 our vacated 2014 opinion, and do so again here. Whitman, 493 Mich at
321.
In any event, our Court has noted the distinction between an employee’s personal motives in
reporting legal violations, and whether that reporting actually advanced the public interest. See
Phinney v Perlmutter, 222 Mich App 513, 554; 564 NW2d 532 (1997) (“[i]n 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 money is in the public interest”) (emphasis added). Phinney’s holdings on unrelated
matters have likely been abrogated by Garg, 472 Mich at 290.
31
See Burton Ordinances 68-25C, § 8(I) (“68-C”). As noted by the Supreme Court, Burton’s
ordinance numbering and policy regarding unused leave time have changed since the time of
trial. Whitman, 493 Mich at 306, n 3. “Because those changes are not relevant to our analysis,
this opinion refers to the ordinance numbering and language as it was introduced during trial.”
Id.
32
Whitman, 293 Mich App at 224.
33
Whitman, 493 Mich at 307.
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team’s waiver of the perks contained in the ordinance was an illustration of shared sacrifice by
the non-unionized department heads, to advance the public interest of the citizens of Burton, at
the employees’ expense.
Only one department head objected to this public-spirited waiver of perks: plaintiff, the
then–chief of police.34 He demanded his money as set forth in the ordinance,35 which he
received after the mayor acted on the advice of outside legal counsel. This is the “law” plaintiff
(mis)uses to assert a claim under the WPA.
We say misuses advisedly because the WPA is designed to ferret out violations of the law
that injure the public, especially when applied to public-sector defendants.36 If government
officials, who are bound to serve the public, violate laws designed to protect the public from
corruption, pollution and the like, then employees who, at their own risk, blow the whistle on
such illegality necessarily serve the public interest—which is precisely why the WPA grants
such employees protection from reprisal. Yet, where the law in question, as here, is not a law to
protect the public, but rather a simple listing of wages, benefits, and various perks—and the very
public servants who benefit financially from the ordinance make a personal sacrifice, and waive
their right to these perks to save the public badly needed funds, and to prevent layoffs and
reduced public services—then any action contrary to the waiver is contrary to the public interest.
Again: the waiver of the perks set forth in the ordinance at issue advances the public interest.
Opposition to that waiver—on which plaintiff bases his suit—objectively disserves the public
interest.
Also, whistleblowing assumes that an employee takes a risk of 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 ordinance, and plaintiff’s refusal to honor that waiver. This is an insistence by an employee,
plain and simple, to get his perks—not an uncovering of corruption or illegality. And this
disagreement about the legal effects of the waiver was satisfied, in plaintiff’s favor, after the city
sought legal counsel. Accordingly, plaintiff’s citation of the ordinance was not whistleblowing.
It simply involved a disagreement regarding the proper interpretation of defendant’s labor laws:
34
Whitman, 493 Mich 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.
35
Id.
36
“[The WPA encourages employees to assist in law enforcement] with an eye toward
promoting public health and safety. The underlying purpose of the [WPA] is the protection of
the public. The act 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/Continental Express, 454 Mich
373, 378–379; 563 NW2d 23 (1997) (emphasis added; footnotes omitted).
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whether the administrative team could waive the perks under 68-C, and whether plaintiff was
bound by the group’s waiver. It has nothing to do with whistleblowing whatsoever.
This is why this is not the usual case, where a report of a violation of law normally
constitutes conduct in the public interest.37 Here, to the contrary, plaintiff’s actions—as an
objective matter—were undoubtedly against the public interest. And defendant did not actually
“violate” any law in the sense that “violations of law” have been traditionally understood in
whistleblowing lawsuits—i.e., revealing public corruption or malfeasance. It simply refused (at
first) to grant plaintiff a monetary perk that he demanded, because all managerial employees
waived these perks. Plaintiff may or may not have been entitled to his perks, but he most
certainly is not entitled to claim the protection of the WPA, when his conduct objectively serves
his interest, but harms the public’s.
Because he is not a “whistleblower” under the WPA, no juror could legally find in favor
of plaintiff on his WPA retaliation claim. The trial court’s denial of defendant’s request for
JNOV is accordingly reversed.
B. CAUSATION38
37
Cases from our sister states interpreting their whistleblower statutes and jurisprudence
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).
Though these cases involve internal corporate disputes—as opposed to reports of violated
municipal statutes—we think that the reasoning is equally relevant to this case, where the
violated statute did not advance the public interest. See Garrity v Overland Sheepskin Co of
Taos, 917 P2d 1382, 1387 (NM, 1996) (“[w]hen an employee is discharged for whistleblowing,
the employee must also demonstrate that his or her actions furthered the public interest rather
than served primarily a private interest”); and Darrow v Integris Health, Inc, 176 P3d 1204, 1214
(Okla, 2008) (“to distinguish whistleblowing claims that would support a viable common-law
tort claim from those that would not, the public policy breached must truly impact public rather
than the employer’s private or simply proprietary interests”). Cases from foreign jurisdictions
are not binding, but can be persuasive authority. People v Campbell, 289 Mich App 533, 535;
798 NW2d 514 (2010).
38
To prevail under the WPA, plaintiff 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, 493 Mich at 320
(emphasis original). In the absence of direct evidence of retaliation (which Whitman does not
present), he must show indirect evidence to demonstrate “that a causal link exists between the
whistleblowing act and the employer’s adverse employment action.” Debano-Griffin v Lake Co,
493 Mich 167, 176; 828 NW2d 634 (2013). A plaintiff’s presentation of indirect evidence is
analyzed under “the burden-shifting framework set forth in McDonnell Douglas [v Green, 411
US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)].” Id. Applying this standard to retaliation claims,
a plaintiff must show that his “protected activity” under the WPA was “one of the reasons which
made a difference in determining whether or not to discharge the plaintiff.” Matras v Amoco Oil
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We also held in our 2011 opinion that plaintiff’s alleged whistleblower activity from late
2003 to early 2004 was not the legal cause of the mayor’s decision to not reappoint plaintiff as
police chief in late 2007.39 Upon closer examination of the facts pertinent to the causation issue,
we are more convinced that plaintiff’s alleged whistleblower activity lacks a causal link to the
mayor’s decision. We so hold for several reasons.
1. TRUST, NOT WHISTLEBLOWING
As noted, in 2003, the mayor’s administrative team voted to voluntarily take a wage
freeze and forego the perk of accumulated sick days to save taxpayer’s money, and avoid layoffs
and reduced services.40 This sacrifice spoke well of the mayor and his department heads.
Plaintiff’s refusal to abide by the department heads’ agreement, and subject himself to the same
sacrifice, raised issues of trust and caused the mayor to rightly be disappointed in plaintiff.
Indeed, plaintiff’s “evidence” of a causal connection between his “whistleblowing” and the
mayor’s decision to not reappoint him, many years later, frames the issue in exactly this context.
A third party who attended plaintiff’s June 2004 meeting with the mayor made
handwritten notes of the discussion, which state: “Mayor = No Trust—68-C (vacation)—lack of
communication[.]”41 And the mayor’s alleged December 2007 statement to other senior police
officers that he and plaintiff “got off on the wrong foot”42—a statement that, if made, occurred
after the mayor decided not to reappoint plaintiff43—supposedly emphasized plaintiff’s 68-C
complaints as an issue of trust, in that plaintiff’s failure to adhere to a voluntary agreement with
his colleagues betrayed that trust. In sum, it appears the mayor viewed the 68-C issue not in the
context of whistleblowing, or anger at plaintiff’s supposed whistleblowing, but instead as an
example of how plaintiff was untrustworthy. As noted, this is not even a case where a “violation
of law” was even remotely an issue. And it is, at best, extremely unlikely that even this “lack of
Co, 424 Mich 675, 682; 385 NW2d 586 (1986) (emphasis added; citations omitted). In other
words, “[t]o establish causation, the plaintiff must show that his participation in a [protected
activity] was a significant factor in the employer’s adverse employment action, not just that there
was a causal link between the two.” Rymal v Baergen, 262 Mich App 274, 303; 686 NW2d 241
(2004) (citations omitted). Because Debano-Griffin uses the McDonnell Douglas framework,
originally designed for employment discrimination claims, it is appropriate for the Court to use
federal cases interpreting McDonnell Douglas as persuasive authority. See Radtke v Everett, 442
Mich 368, 382; 501 NW2d 155 (1993) (stating that Michigan courts “turn to federal precedent
for guidance in reaching [their] decision” on whether plaintiff has established a valid
discrimination claim).
39
Whitman, 293 Mich App at 232, n 1.
40
Whitman, 293 Mich App at 230.
41
Whitman, 303 Mich at 309 (emphasis original).
42
Id.
43
It is difficult to see how a statement the mayor allegedly made after he had already declined to
reappoint Whitman would influence his decision not to reappoint Whitman.
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trust” over plaintiff’s failure to honor an agreement on this specific occasion had anything to do
with his subsequent dismissal, for the numerous reasons discussed below.
2. ALLEGED RETALIATION IS TEMPORALLY REMOTE FROM ALLEGED
WHISTLEBLOWING
Plaintiff’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 are not dispositive of retaliation—when those two events are close in time (i.e., days,
weeks, or a few months apart).44 If whistleblowing and retaliation that occur close in time are
not sufficient to find causation under the WPA, whistleblowing and retaliation that occur far
apart in time are certainly not sufficient to support causation—and, in fact, weigh against finding
causation. See Fuhr v Hazel Park Sch Dist, 710 F3d 668, 675 (CA 6, 2013) (holding in the
context of a Title VII retaliation claim that a two-year gap between plaintiff’s protected activity
and the claimed retaliatory act “proves fatal to [plaintiff’s] assertion that there is a causal
connection”).45
Here, there is an enormous temporal gap between plaintiff’s alleged whistleblowing and
the supposed retaliation, which belies any causal connection between the two. As noted,
plaintiff’s demands to receive compensation under 68-C took place in 2003 and early 2004. The
mayor declined to reappoint him police chief in November 2007—almost four years after the
supposed whistleblowing. Of course, the mayor, as the top executive officer of the city of
44
See, for example, West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003) (to
satisfy causation requirement under WPA, plaintiff must show “something more than merely a
coincidence in time between protected activity and adverse employment action”); Tuttle v Metro
Govt of Nashville, 474 F3d 307, 321 (CA 6, 2007) (“[t]he law is clear that temporal proximity,
standing alone, is insufficient to establish a causal connection for a retaliation claim”); and Shaw
v Ecorse, 283 Mich App 1, 15; 770 NW2d 31 (2009) (“[a] temporal connection between
protected activity and an adverse employment action does not, in and of itself, establish a casual
connection”).
45
In its opinion, 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; interpretations
of our sister states’ whistleblower laws and jurisprudence have made similar observations on
how a long time span between the alleged whistleblowing and supposed retaliation weigh against
finding causation. See Blake v United American Ins Co, 37 F Supp 2d 997, 1002 (SD Ohio,
1998) (holding that alleged whistleblowing action that took place five years before plaintiff’s
termination was not “close enough in time . . . to support a claim of retaliation”); Anderson v
Meyer Broadcasting Co, 630 NW2d 46, 55 (ND, 2001) (holding that a “lengthy” delay of
approximately a year “between [plaintiff’s] reports and her termination does not support an
inference she was fired because of the protected activity”).
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Burton, could terminate plaintiff at any time.46 He could have done so in March 2003, when
plaintiff first voiced opposition to the waiver of 68-C, or in early 2004, when plaintiff insisted on
his compensation pursuant to the ordinance. In fact, the evidence demonstrates the mayor was
not concerned about plaintiff’s 68-C demands at all: he reappointed plaintiff as police chief in
November 2003—six months after Whitman’s initial complaint regarding 68-C. And, again, the
expiration of plaintiff’s term took place in November 2007, almost four years after those
complaints.
It strains credulity to the breaking point to suggest, as plaintiff does, that the mayor—who
had the power to dismiss plaintiff at any time, for any reason or no reason—was so upset with
plaintiff’s alleged “whistleblowing” in late 2003 and early 2004 that he allowed plaintiff to
continue as police chief for all of 2004, 2005, 2006 and into late 2007, and only then decide to
“retaliate” against plaintiff. Indeed, when viewed in the context of the typically close working
relationship between a mayor and his chief of police, and the fact that the chief of police, as a
member of the mayor’s executive team, serves at the pleasure of the mayor, plaintiff’s
allegations take leave of reality and enter the theatre of the absurd.
3. BREAKS IN PLAINTIFF’S SUPPOSED CAUSAL CHAIN
The long period of time between plaintiff’s supposed whistleblowing and the mayor’s
decision not to reappoint him involves another aspect that is fatal to plaintiff’s claim: numerous
breaks in the causal chain. Plaintiff’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 him chief in November of that same year. His further attempts to secure
compensation in January 2004 were addressed by the mayor—who sought the advice of city
counsel and then outside labor counsel—and complied with that legal advice by paying him
almost $7,000 in additional compensation. And his 2004 dispute with the mayor ended
amicably—he remained chief for over three years following that meeting, and, by his own
admission, plaintiff 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. PLAINTIFF’S MISCONDUCT LED TO ADVERSE EMPLOYMENT ACTION
In any event, plaintiff has provided no evidence to refute the mayor’s stated and
compelling reasons for not reappointing him: plaintiff engaged in serious misconduct and
misused his office. After his reelection in November 2007, the mayor reevaluated his entire
administrative team pursuant to the mandates of Burton Charter § 6.2(b).47 During this period,
46
Again, Burton Charter § 6.2(b) states that the chief of police serves “at the pleasure of the
mayor.
47
Again, Burton Charter § 6.2(b) states:
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he was advised of plaintiff’s serious misconduct in office by officers in plaintiff’s department.
Among other things, these included allegations that Whitman: (1) meted out inadequate
discipline of subordinates who abused their power; (2) misused a city computer to exchange
sexually explicit email messages with a woman who is not his wife; (3) discriminated against a
female officer; and (4) forged a signature on a budget memo.48 Command officers within the
police department warned the mayor of serious morale problems created by plaintiff’s abuse of
power.49 In the face of these troubling revelations, the mayor understandably did not reappoint
plaintiff to this important position of public trust—and these are the reasons the mayor gave for
declining to reappoint plaintiff as police chief in November 2007. To suggest that a mayor,
whose chief works at his pleasure, would make a reappointment decision due to an old, stale
issue instead of very recent, more disturbing revelations, is simply fanciful.
Plaintiff made no specific effort before this Court to deny these allegations against him,
other than to state, self-servingly and without support, that they are “merely a pretext,” and to
assert “that his personnel file demonstrates that his performance as police chief was good, that he
had received numerous awards, and that there were never any disciplinary actions against him.”
Whitman, 493 Mich at 309–310. His only proffered “evidence” of a causal connection between
his supposed “whistleblowing” and the mayor’s decision to not reappoint him is the
aforementioned statement made by the mayor in December 2007—after the mayor already made
his decision, but before its public announcement—in which the mayor supposedly told senior
police officers that he lacked trust in plaintiff. He cited as one example plaintiff’s refusal to keep
his word, and, along with the entire administrative team, waive his unused sick-day
compensation under 68-C.
When this assertion is weighed against the other factors in this case—(1) the mayor’s
view of plaintiff’s 68-C demands as a trust, not retaliation, (and certainly not “whistleblowing”)
issue; (2) the almost four-year interval between plaintiff’s alleged whistleblowing and the
purported retaliation; (3) the causal breaks in plaintiff’s claim; and (4) allegations of plaintiff’s
extensive misconduct—the evidence is overwhelming that plaintiff’s so-called “whistleblowing”
had no connection to the mayor’s decision to not reappoint him as police chief. There is simply
no way that a reasonable factfinder, even when “view[ing] the evidence and all legitimate
inferences . . . in the light most favorable to the nonmoving party,” could find that retaliation was
“one of the reasons which made a difference in determining whether or not to discharge the
plaintiff.” Matras, 424 Mich at 682 (emphasis added).
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 indefinite
[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.
48
See Whitman, 493 Mich at 309. Whitman admitted at trial that he used a city computer to
exchange sexually explicit messages with a woman who is not his wife. Plaintiff makes no
specific effort to deny these other allegations, but states that they are “merely a pretext.” Id. at
310.
49
Whitman, 293 Mich App at 227.
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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 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 appointment “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 such, an administrative officer in the city of Burton has no expectation of continued
employment. He knows that his term cannot last longer than four years, because, after the
mayor’s election or reelection, he must be “reaffirmed” to his position. And he also knows that
his term may be much shorter than four years—indeed, it may be ended at any time—because he
serves “at the pleasure of the mayor.” it may be ended at any time—because he serves “at the
pleasurHere, as we explain 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, because the city charter required the mayor
to “reaffirm or appoint” a police chief, and submit his suggestion to the city council for approval.
Thus, at this stage, Whitman was a candidate for the position of police chief, because his term as
the chief of police ended with the mayor’s reelection. Accordingly, Whitman cannot now use
the WPA—which does not protect “job applicants” or “prospective employees”—to sue the city
for the mayor’s ultimate decision to not reappoint him as police chief. In other words, Whitman
may not bring a WPA claim against the city of Burton for the mayor’s decision to not reappoint
him to an office that, as a matter of law, he no longer held at the time of his non-reappointment.
The dissent attempts to escape this obvious outcome with irrelevant appeals to emotion
(“[Whitman] was a full-time, 32 ½-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, non-colloquial, 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 term is used in 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
indefinite [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 definition of “indefinite” supplied by a dictionary and in
keeping with the broader context of the sentence in which it is used in Burton’s charter, the
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dissent interprets “indefinite” to mean “forever”—i.e., that Whitman had an expectation of
continued employment for an unlimited period of time.
This interpretation is the exact opposite of what the term “indefinite” actually means in
the context of the city charter. Again, an “indefinite” term 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 within that four-year span before the expiration of his term. Therefore,
Whitman had no expectation of continued employment. But, most importantly, for the
application of Wurtz, the law of the city of Burton required plaintiff to be reappointed (and
approved by the city council) as the chief of police every four years, after the mayor’s reelection.
As the mayor chose not to reappoint him 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 a
retaliatory action against Whitman while he was employed as chief of police. Rather, the mayor
chose to not reappoint Whitman after his reelection in November 2007, at which time Whitman
became a candidate for the (now open) position of police chief.
V. CONCLUSION
We hold that plaintiff’s claim must be dismissed for any one or combination of the
following reasons: (1) Wurtz requires its dismissal; (2) objectively, plaintiff’s conduct did not
advance the public interest, but instead ran contrary to the public interest; and (3) the mayor’s
refusal to reappoint plaintiff, a political appointee, to another four-year term as police chief, was
because of plaintiff’s egregious misconduct, not the whistleblowing activity that allegedly took
place long before his four-year term as chief had ended.
Accordingly, because no reasonable factfinder could legally find in favor of plaintiff 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.
/s/ Henry William Saad
/s/ Peter D. O’Connell
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