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Topic: Flint Police whistleblower Smith versus City of Flint

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untanglingwebs
El Supremo

In the November 2012 election Flint residents approved a five-year, six mil public safety millage that was expected to raise $5.3 million. Smith publically complained that the promised new hires in the police department were not being made. Some retiring officers were not being replaced as well.

Smith was a full time police officer working 8am to 4 pm and used weekends as the President of the Flint Police Officers Association to resolve labor disputes.. Flint was under Emergency Manager Kurtz, who used his power to issue drastic Executive Orders in order to minimize the power of the unions. Executive Order #18, issued April 24th, changed substantially portions of the union contract and eliminated the union president position. Smith continued to work as union president throughout 2013.

On March 8, 2013 the Police Chief sent a written correspondence telling Smith he would be returned to patrol as of March 11th. However, while other officers were being given rotating shifts, Smith was assigned to a permanent night shift in a north Flint sector. He was also advised he could not go the south end of Flint. During this time the north end of Flint was very dangerous.

I remember stories in the Journal citing Merrill Hood as the most dangerous sector in Flint. There were various other gangs including the Pierson Hood that was prosecuted under the RICO statute.


Last edited by untanglingwebs on Sat Jun 18, 2016 11:41 am; edited 1 time in total
Post Sat Jun 18, 2016 10:36 am 
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untanglingwebs
El Supremo

On November 5, 2015 Appeals Court Judges Henry William Saad and Michael j Riordan issued their ruling the city's actions did not constitute an adverse employment action . The decision was 2-1 with Judge Karen M Fort Hood, as the dissenting judge who believed the discrimination issue belonged in front of a jury.

Smith's attorney is Tom Pabst, who with Attorney Mike Kowalko, predict the final decision of the Supreme Court could redefine law in Michigan regarding adverse employment actions.
Post Sat Jun 18, 2016 10:56 am 
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untanglingwebs
El Supremo

The Appeals Court decision is on FindLaw. I was surprised to see the court reviewed a statutory interpretation de novo of the Whitman v City of Burton, 493 Mich 303, 311, 831 NW2d 223(2013). This was a hard fought case for Pabst and kowalko, but they prevailed after multiple ruling from the Supreme Court.
Post Sat Jun 18, 2016 11:03 am 
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untanglingwebs
El Supremo

Pabst noted that retaliation claims do not require the plaintiff demonstrate tangible pay losses or out of pocket money loss. The retaliation was to intimidate Smith or persuade him to not speak out about issues of public concern.

The issue ids that Smith after his complaint, Smith was permanently transferred to a night shift in the north end and not permitted the standard rotating shift. Smith continued to exercise his union duties as best he could.
Post Sat Jun 18, 2016 11:11 am 
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untanglingwebs
El Supremo

How does the Michigan Department of Civil Rights define an Adverse Employment Action?

1. The employment action must be materially adverse i.e. it must be more than mere inconvenience or an alteration of job responsibilities.

2. Claimant must have an objective basis for demonstrating the change is adverse, rather than a mere subjective impression that it is.

3. De minimus actions are not materially adverse. A change in employment conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities.

4.A materially adverse action might be:
a, Discharge
b. Demotion or transfer accompanied by one or more of the following:
*decreased wages or salary
*a less distinguished job title
*a material loss of benefits
*significantly diminished material job responsibilities
*loss of seniority
*other criteria that are unique to the particular situation
c. Supervisor's decision not to take action to stop harassment by co-workers in
retaliation for employer's opposition to civil rights violations
**d. Permanent transfer to another shift, even when no change in salary or
position occurred, where the change in work hours impacted employee's
ability to continue her education
Strouss v Department of Corrections, 75F Supp. 2d711(E.D.) Mich. 1999
Post Sat Jun 18, 2016 11:29 am 
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untanglingwebs
El Supremo

It is unlawful for an employer to take a materially adverse action against an employee who is engaged in a protected activity. An employee speaking out on a subject of public interest is a protected action. Indeed the Flint Council and the public repeatedly spoke out against the perceived misuse of this public safety millage.

On the Mintz Levon website, a law firm specializing in employment law, described the 2nd Circuit Court ruling on a FMLA case.

The discussed the Title VII Retaliation Claims as encompassing any action "that is likely to dissuade a reasonable worker in the plaintiff's position from exercising his legal rights"

This decision was said to have joined decisions of the 3rd, 4th, 5th and 10th Circuit Court of Appeals.
Post Sat Jun 18, 2016 11:41 am 
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untanglingwebs
El Supremo

Imagine a worker who normally starts work at 8 am and who takes their child to school every day at 7:30 am. After speaking up against an action of their employee that might be construed as improper and/or illegal, they are now made to report to work at 7:00 am and they are without the means to arrange alternate transportation. They also cannot afford to quit and spend time looking for another job.

Picture a municipal employee, who after speaking out about questionable transactions, loses their office and is placed in a basement space that subjects them to public humiliation .
Post Sat Jun 18, 2016 11:49 am 
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untanglingwebs
El Supremo

Supreme Court says police union chief's lawsuit can continue against Flint
Kevin Smith.jpg
The Flint Police Officers Association claims the city terminated the full-time union position for its president, Kevin Smith, prior to an upcoming arbitration process. (File Photo)

Dominic Adams | dadams5@mlive.com By Dominic Adams | dadams5@mlive.com

on February 06, 2017 at 3:00 PM

FLINT, MI -- A lawsuit from the president of the Flint police officer's union that claims he was punished for speaking out on the city's use of the then-recently-passed public safety millage could be headed for trial after the state Supreme Court remanded the case back to Genesee Circuit Court.

Flint Police Officer Association President Kevin Smith claimed in a 2013 lawsuit against the city that he was assigned to night patrol in the city's north side after he spoke out publicly and to department leadership about how the city was using $5.3 million in public safety millage funds by claiming that the funds were not being used to hire new officers.

"I'm very proud to represent Kevin Smith. He's a courageous police officer who risked his job to tell us they weren't using the millage money for what we voted for. They were using it for general fund and other things," said Smith's attorney, Tom Pabst. "We actually changed the law in the state of Michigan. More protection for whistleblowers is what it comes down to, which is a good thing because whistleblowers protect us the people."
ADVERTISING

The Michigan Supreme Court's order came on Friday, Feb. 3.

MLive-The Flint Journal could not reach city officials for comment on the case.

Genesee Circuit Judge Joseph J. Farah dismissed Smith's Whistleblower Protection Act claim in January 2014 following a summary disposition motion. Farah ruled that Smith had not experienced an adverse employment act as defined by the state's whistleblower law.

However, the Supreme Court's decision rejects Farah's ruling, and further clarifies what could be considered as an adverse employment act.



The state Supreme Court will hear arguments in a lawsuit from the president of the Flint police officer's union who claims we has punished for speaking out on the city's use of the then-recently-passed public safety millage.

Smith began legal action against the city after his position as full-time union president was eliminated by the city as part of an April 14, 2012, order issued by former Emergency Manager Michael Brown.

In April 2012, then-Flint Emergency Manager Michael Brown issued order No. 18 that instituted a number of changes to the union's contract with the city, including the immediate elimination of the union president position.

Smith began legal action against the city after his position as full-time union president was eliminated by the city as part of an April 14, 2012, order issued by former Emergency Manager Michael Brown.

However, Smith said the city waited until Monday, March 11, 2013, to actually terminate the position when he was ordered back to road patrol.

The attorney for Flint Police Officer Association President Kevin Smith said he plans to appeal a ruling by a Genesee Circuit judge dismissing a portion of Smith's lawsuit against the city that claims he was retaliated against for speaking out against the city's use of public safety millage funds.

As president, Smith worked from 8 a.m. to 4 p.m. with weekends off in order to handle union business.

He was eventually assigned to the night shift in the city's north end when he was ordered back to road patrol.

Smith alleges in the lawsuit that police leaders scheduled him to work exclusively in the north end -- a beat that he claims in the lawsuit is more dangerous than others in the city -- as retaliation. Smith claims that no other patrol officers are assigned solely to the city's north end.

The lawsuit claimed Smith was retaliated against after he made public statements that the city was not fulfilling its promises of hiring new officers with the voter-approved public safety millage monies.

An appeals court in November 2015 upheld Farah's ruling in a 2-1 decision.

Appeals Court Judges Henry William Saad and Michael J. Riordan ruled that the city's decision to assign Smith to patrol duty in the city's north end did not constitute an adverse employment action.

"Plaintiff's assignment to patrol areas of the city is more in the nature of 'job duties' that fall squarely within the discretion of a police department's fundamental role in securing public safety," the judges ruled.

However, Appeals Judge Karen M. Fort Hood dissented, stating the question whether or not Smith was discriminated against should be determined by a jury.

Pabst said the case should go back to trial in Farah's court within 10 months - unless the city decides to settle.

"We'll let the jury decide what your amount of loss is," Pabst said. "(The city) could put money on the table and settle any time. I expect this case will be tried in front of a jury. Kevin makes a great witness. He had the guts to speak up knowing he would get pounded."
Post Tue Feb 07, 2017 1:07 pm 
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