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.
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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