Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  February 3, 2017                                                                                     Stephen J. Markman,
                                                                                                                 Chief Justice

  152844                                                                                               Robert P. Young, Jr.
                                                                                                            Brian K. Zahra
                                                                                                    Bridget M. McCormack
                                                                                                          David F. Viviano
                                                                                                      Richard H. Bernstein
  KEVIN SMITH,                                                                                              Joan L. Larsen,
            Plaintiff-Appellant,                                                                                      Justices

  v                                                                 SC: 152844
                                                                    COA: 320437
                                                                    Genesee CC: 13-100532-CZ
  CITY OF FLINT,
             Defendant-Appellee.

  _________________________________________/

          On January 12, 2017, the Court heard oral argument on the application for leave to
  appeal the November 5, 2015 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to
  appeal, we REVERSE the judgment of the Court of Appeals, for the reasons stated in the
  Court of Appeals dissenting opinion. Namely, we agree with Judge Fort Hood’s dissent
  that the plaintiff’s complaint sufficiently alleged discrimination under the
  Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., on the basis of a job
  reassignment unique to the plaintiff during undesirable hours at an undesirable location.
  See MCR 2.116(C)(8); Maiden v Rozwood, 461 Mich 109, 119-120 (1999).
  Furthermore, we VACATE as prematurely decided that part of the Court of Appeals
  majority opinion ruling sua sponte that the plaintiff’s WPA claim should be dismissed for
  failure to properly plead participation in a protected activity, given that the issue had not
  been raised by either party or reached by the trial court, and the requirements of MCR
  2.116(I)(5) have not been addressed. We REMAND this case to the Genesee Circuit
  Court for further proceedings not inconsistent with this order.

         We do not retain jurisdiction.




                           I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           February 3, 2017
           t0131
                                                                               Clerk
