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### STATE OF MICHIGAN

COURT OF APPEALS

KEVIN SMITH,

Plaintiff-Appellant, FOR PUBLICATION November 5, 2015

v No. 320437

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

Defendant-Appellee.

Before: F ORT H OOD , P.J., and S AAD and R IORDAN , JJ.

Fort Hood, J. ( dissenting ).

I respectfully dissent from the majority opinion. I agree wit h the majority’s determinations regarding the app licable law, but I disagree wit h the analysis. I would conclude that a question of fact exists regarding whether defendant disc riminated 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 posit ion of full-time union president in April 2012, months b efore plaintiff initiated any public criticism of defendant. While acting as union president may have been a privilege of pl aintiff’s employment, there is no question that the act was not r etaliatory give n the timing of t he 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 t o 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 e nd of Flint. Plaintiff asserts t hat 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 in dicated that he did not know of any other patrol officers that w ere assigned to work the north end (or any other area) exclusively. Plaintiff also alleged that he was told that he would not be al lowed to work in the south end. In addition, plaintiff claimed that h is assignment to night shift prevented him from conducting his union duties, which must be performed during daylight hours. A ccording to plaintiff, his assignment to the night shift was deliberately designed to thwa rt his union duties. In response,-2- defendant claimed that plainti ff’s concerns regarding his hours and shift were only his subjective complaints, and that plaintiff did not provide any objective ev idence that his transfer affected the terms, conditions, location, or pr ivileges of his employment.

I would hold that there is a question of fact regarding whethe r plaintiff’s claims constitute

discrimination. Plaintiff’s hours and the location of his shif t were changed, which I believe relate to the terms and location of his employment. In particu lar, 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 t erm 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 obt ain a supervisor’s permission as required by Order 18. In additi on, plaintiff was assigned excl usively 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 offi cers 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 que stion of fact whether these actions could be objectively and materially adverse to a reasonable per son. Peña v Ingham Co Rd

Comm , 255 Mich App 299, 312; 660 NW2d 351 (2003). Accordingly, I w ould hold that there is a question whether the actions by defendant constituted discrim ination 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 tria l court for further proceedings.

/s/ Karen M. Fort Hood

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