                           STATE OF MICHIGAN

                              COURT OF APPEALS



KEVIN SMITH,                                                         FOR PUBLICATION
                                                                     November 5, 2015
               Plaintiff-Appellant,

v                                                                    No. 320437
                                                                     Genesee Circuit Court
CITY OF FLINT,                                                       LC No. 13-100532-CZ

               Defendant-Appellee.


Before: FORT HOOD, P.J., and SAAD and RIORDAN, JJ.

Fort Hood, J. (dissenting).

       I respectfully dissent from the majority opinion. I agree with the majority’s
determinations regarding the applicable law, but I disagree with the analysis. I would conclude
that a question of fact exists regarding whether defendant discriminated against plaintiff
regarding the terms, conditions, location, or privileges of his employment, and reverse and
remand for further proceedings.

        In regard to plaintiff’s change from full-time union president to road patrol, I agree that
plaintiff has not established a question of fact that this act constituted discrimination pursuant to
MCL 15.362. Defendant’s emergency manager eliminated the position of full-time union
president in April 2012, months before plaintiff initiated any public criticism of defendant.
While acting as union president may have been a privilege of plaintiff’s employment, there is no
question that the act was not retaliatory given the timing of the events.

        However, plaintiff’s assignment to the night shift in Flint’s north end provides a closer
question. Plaintiff, who had worked from 8:00 a.m. until 4:00 p.m. in his capacity as union
president, was informed in writing that he was being assigned to road patrol. The letter stated
that plaintiff’s hours would be 8:00 a.m. to 4:00 p.m. However, plaintiff was actually assigned
the night shift in the north end of Flint. Plaintiff asserts that the north end was “considered crime
ridden and a much more dangerous area of assignment for police officers” and that the south end
was “a more safe area” compared to the north end. Plaintiff indicated that he did not know of
any other patrol officers that were assigned to work the north end (or any other area) exclusively.
Plaintiff also alleged that he was told that he would not be allowed to work in the south end. In
addition, plaintiff claimed that his assignment to night shift prevented him from conducting his
union duties, which must be performed during daylight hours. According to plaintiff, his
assignment to the night shift was deliberately designed to thwart his union duties. In response,

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defendant claimed that plaintiff’s concerns regarding his hours and shift were only his subjective
complaints, and that plaintiff did not provide any objective evidence that his transfer affected the
terms, conditions, location, or privileges of his employment.

        I would hold that there is a question of fact regarding whether plaintiff’s claims constitute
discrimination. Plaintiff’s hours and the location of his shift were changed, which I believe
relate to the terms and location of his employment. In particular, plaintiff was informed in
writing that his hours on road patrol would be 8:00 a.m. until 4:00 p.m., which was consistent
with his former schedule. Plaintiff’s work hours relate to a term of his employment. Moreover,
accepting plaintiff’s claims as true, it does appear as though he would be unable to perform his
union duties during his shift, even assuming he was able to obtain a supervisor’s permission as
required by Order 18. In addition, plaintiff was assigned exclusively to the north end, which
relates to the terms and location of his employment. Plaintiff alleged that this area was more
dangerous and that no other officers were exclusively assigned to that area. Viewing the
complaint in a light most favorable to plaintiff, Maiden v Rozwood, 461 Mich 109, 119; 597
NW2d 817 (1999), I believe that plaintiff has established a question of fact whether these actions
could be objectively and materially adverse to a reasonable person. Peña v Ingham Co Rd
Comm, 255 Mich App 299, 312; 660 NW2d 351 (2003). Accordingly, I would hold that there is
a question whether the actions by defendant constituted discrimination regarding the terms and
location of defendant’s employment pursuant to MCL 15.362.1

       For the reasons stated, I would reverse and remand to the trial court for further
proceedings.

                                                              /s/ Karen M. Fort Hood




1
 I limit my dissent to the issue that our Supreme Court directed this Court to consider and, thus,
do not address the majority’s discussion of whether plaintiff pled sufficient facts to establish a
protected activity. Smith v City of Flint, 497 Mich 920; 856 NW2d 384 (2014).

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