Intentional infliction of emotional distress (IIED); Governmental immunity; Governmental function; Genesee Cnty Drain Comm’r v Genesee Cnty; The Whistleblowers’ Protection Act (WPA); MCL 15.362; Protected activity; Brown v Mayor of Detroit; Retaliatory action; Wurtz v Beecher Metro Dist; Causal connection; Detroit Police Department (DPD); Office of Chief Investigator (OCI)

In these consolidated appeals, the court held that (1) plaintiff-police officer did not properly plead her IIED claim in avoidance of governmental immunity but (2) she did establish a prima facie case of a WPA violation. The case arose from events after she “referred for investigation a citizen’s complaint against the commander of her police precinct” (G). As to her IIED claim, the court noted that it seemed she “adopted the same theory employed by the plaintiffs in” Genesee Cnty Drain Comm’r, which the court summarized “as ‘if a governmental agency commits an intentional tort, it cannot, by definition, be engaged in the exercise or discharge of a governmental function, as intentional torts ought not be regarded as a government function.’” The court rejected the theory there and did so again here. As in that case, “‘the alleged intentional torts committed by defendants were specific acts or decisions that occurred as part of the “general activity” of [their] government function.’” The court noted that it “‘is well established in Michigan that the management, operation, and control of a police department is a governmental function.’” There was testimony from multiple witnesses “that it was common practice to reassign an officer who was under investigation to another unit within the police department while the investigation was pending. Therefore, plaintiff’s reassignment fell within the management of the DPD as a governmental function. Because [she] did not present any evidence or argument to contradict this testimony, she failed to establish that her reassignment occurred outside the exercise or discharge of a governmental function.” But as to her WPA claim, she “was engaged in protected activity when she recorded [the] complaint and submitted it to the OCI, contrary to [G’s] demand that plaintiff not process the complaint.” In addition, she “established an adverse employment action as to the reassignment and loss of overtime.” The court further concluded that, viewing the “evidence in a light most favorable to plaintiff,” a genuine issue of material fact existed that the investigation into her alleged insubordinate behavior “was initiated in retaliation for her submission of” the citizen complaint. The court reversed the trial court’s denial of summary disposition to defendant as to the IIED claim but affirmed the denial of its summary disposition motion as to the WPA claim, and remanded.