Juravin v. Rada

DEBANO-GRIFFIN v LAKE COUNTY Docket No. 143841. Argued October 10, 2012 (Calendar No. 6). Decided February 8, 2013. Cheryl Debano-Griffin brought an action in the Lake Circuit Court against Lake County and the Lake County Board of Commissioners alleging, in part, that she had been terminated from her position as the director of Lake County’s 911 department in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., after she raised concerns about a potentially improper transfer of county funds from the county’s ambulance account and regarding the ambulance service provided to the county. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). The court, Peter J. Wadel, J., denied the motion, and the jury returned a verdict in plaintiffs favor. Defendants appealed. The Court of Appeals, ZAHRA, PJ. (Whitbeck, J., concurring, and M. J. Kelly, J., dissenting), in an unpublished opinion, issued October 15, 2009 (Docket No. 282921), reversed and remanded for entry of an order granting summary disposition to defendants. In lieu of granting leave to appeal, the Supreme Court reversed the judgment of the Court of Appeals and remanded the case to that Court for consideration of an additional argument that had been raised by defendants. 486 Mich 938 (2010). On remand, the Court of Appeals, Murray, PJ., and Hoekstra, J. (Stephens, J., dissenting), in an unpublished opinion per curiam, issued August 25, 2011 (Docket No. 282921), held that plaintiff had failed to establish a genuine issue of material fact regarding the causation element of her claim and again reversed the trial court’s order denying defendants’ motion for summary disposition. The Supreme Court granted plaintiffs application for leave to appeal. 491 Mich 874 (2012). In an opinion by Justice Cavanagh, joined by Chief Justice Young and Justices Markman and Mary Beth Kelly, the Supreme Court held: Judicial review of plaintiffs claim under the WPA, which questioned defendants’ proffered reason for the elimination of her position by asserting that the proffered reason for termination was a pretext for retaliation, violated neither the business-judgment rule nor the separation of powers given that review of the claim merely required examination of whether the county board had acted outside its constitutionally and legislatively granted powers and that plaintiff did not question whether the purportedly economic decision was wise, shrewd, prudent, or competent. 1. Under the WPA, a plaintiff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3) a causal connection existed between the protected activity and the adverse employment action. In this case, only the causal connection was at issue. Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link existed between the whistleblowing act and the employer’s adverse employment action. A plaintiff may present a rebuttable prima facie case on the basis of proofs from which a fact-finder could infer that the plaintiff was the victim of unlawful retaliation. Something more than a temporal connection between protected conduct and an adverse employment action is required to show causation when retaliation is claimed. In this case, when viewed in the light most favorable to plaintiff, the facts supported a reasonable inference that plaintiff was the victim of unlawful retaliation. Specifically, during a 12-day period when plaintiff engaged in protected activity by raising the concerns, her position went from ftilly funded to nonexistent; from that evidence, a rational fact-finder could infer that the board had decided to fund plaintiff’s position until she voiced her complaints. Further, plaintiff made her complaints to the board that ultimately eliminated her position. It is reasonable to infer that the more knowledge the employer has of the protected activity, the greater the possibility of an impermissible motivation for the adverse employment action. Additionally, the board remedied its prior and potentially unlawful action after plaintiff voiced her concerns, suggesting that because of plaintiffs complaints, the board was forced to do something it would not otherwise have done. From that evidence, a reasonable inference could be drawn that the board was motivated to eliminate plaintiff’s position because of her complaints. 2. Once a plaintiff establishes a prima facie case, a presumption of retaliation arises because an employer’s adverse action is more likely than not based on the consideration of impermissible factors if the employer cannot otherwise justify the action. The employer might be entitled to summary disposition, however, if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-finder could still conclude that his or her protected activity was a motivating factor for the employer’s adverse action. A plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but must raise the issue that it was pretext for unlawful retaliation. In this case, defendants claimed that plaintiffs position was eliminated because of economic necessity and that plaintiff could not challenge that justification because any challenge would either impermissibly question defendants’ business judgment or unconstitutionally require judicial review of a legislative body’s policy decision, violating the separation of powers. A plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts (1) by showing that the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision. The soundness of an employer’s business judgment, however, may not he questioned as a means of showing pretext. In this case, plaintiff did not question defendants’ business judgment. Rather, plaintiff asserted that defendants’ proffered justification had no basis in fact, or at least was not the actual factor motivating the decision, when she offered evidence that, when viewed in the light most favorable to her, suggested that the county was not facing a budget crisis. Further, the WPA expressly waives legislative immunity, making the act fully applicable to public employers. Thus, the question whether the hoard lawfully exercised its authority when it eliminated plaintiffs position was subject to judicial review, and that review did not violate the separation of powers. Plaintiff presented sufficient evidence to conclude that reasonable minds could differ regarding the board’s true motivation for eliminating her position and raised a genuine issue of material fact regarding causation. Defendants were not entitled to summary disposition. Judgment of the Court of Appeals reversed, trial court’s denial of defendants’ motion for summary disposition reinstated, and trial court order entering judgment in favor of plaintiff reinstated. Justice Zahra took no part in the decision of this case because he was on the Court of Appeals panel that issued the initial opinion. Justice McCormack took no part in the decision of this case. 1. Actions — Whistleblowers’ Protection Act — Prima Facie Case — Causal Connection — Indirect Evidence — Employer’s Knowledge of Protected Activity. Under the Whistleblowers’ Protection Act, a plaintiff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3) a causal connection exists between the protected activity and the adverse employment action; absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link exists between the whistleblowing act and the employer’s adverse employment action; something more than a temporal connection between protected conduct and an adverse employment action is required to show causation when retaliation is claimed; it is reasonable to infer that the more knowledge the employer has of the protected activity, the greater the possibility of an impermissible motivation for the adverse employment action (MCL 15.361 et seq.). 2. Actions — Whistleblowers’ Protection Act — Presumption of Retaliation — Legitimate, Nondiscriminatory Reason for the Adverse Employment Action — Pretext for Unlawful Retaliation — Business-Judgment Rule. Once a plaintiff establishes a prima facie case of retaliation under the Whistleblowers’ Protection Act, a presumption of retaliation arises; the employer might be entitled to summary disposition, however, if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-finder could still conclude that his or her protected activity was a motivating factor for the employer’s adverse action; a plaintiff must not merely raise a triable issue that the employer’s proffered reason was pretextual, but must raise the issue that it was pretext for unlawful retaliation; a plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts (1) by showing that the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivating the decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the decision; the soundness of an employer’s business judgment, however, may not be questioned as a means of showing pretext (MCL 15.361 et seq.). 3. Actions — Whistleblowers’ Protection Act — Waiver of Legislative Immunity. The Whistleblowers’ Protection Act expressly waives legislative immunity, making the act fully applicable to public employers; the question whether a legislative body has lawfully exercised its authority when taking an adverse employment action is subject to judicial review (MCL 15.361 et seq.). Mark Granzotto, EC. (by Mark Granzotto), and Parsons Law Firm, PLC (by Grant W. Parsons), for Cheryl Debano-Griffin. Abbott Nicholson, EC. (by John R. McGlinchey and Kristen L. Baiardi), for Lake County and the Lake County Board of Commissioners. CAVANAGH, J. This case requires us to determine whether plaintiff, Cheryl Debano-Griffin, provided sufficient evidence to create a genuine issue of material fact regarding the causation element of her claim under the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq. We hold that plaintiff presented evidence that showed more than a temporal relationship between the protected activity and defendants’ adverse employment action. See West v Gen Motors Corp, 469 Mich 177; 665 NW2d 468 (2003). Also, because plaintiff must rely on circumstantial evidence to overcome defendants’ motion for summary disposition, the framework set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable. In this case, we hold that plaintiff provided sufficient evidence to establish her prima facie case of unlawful retaliation under the WPA. Additionally, we must determine whether plaintiffs claim, which questions defendants’ proffered reason for the elimination of her position by asserting that the proffered reason was a pretext for retaliation, violates either the business-judgment rule, see Hazle v Ford Motor Co, 464 Mich 456, 475-476; 628 NW2d 515 (2001), or the separation of powers. We hold that it does not violate the separation of powers because judicial review of plaintiffs statutory claim merely examines whether the county board of commissioners acted outside its constitutionally and legislatively granted powers. Additionally, plaintiffs challenge to defendants’ budgetary justifications does not implicate the business-judgment rule because plaintiff does not question whether the economic decision was “ ‘wise, shrewd, prudent, or competent.’ ” See id. at 476 (citation omitted). Moreover, in addition to adequately rebutting defendants’ facially legitimate budgetary grounds for eliminating plaintiffs position, plaintiff presented sufficient evidence to conclude that reasonable minds could differ regarding defendants’ true motivations for eliminating her position. Therefore, plaintiff created a triable issue of fact and defendants were not entitled to summary disposition. Accordingly, we reverse the judgment of the Court of Appeals and reinstate the trial court’s denial of defendants’ motion for summary disposition. I. FACTS AND PROCEEDINGS In 1998, plaintiff began working as the director of Lake County’s 911 department. Before her hiring, county voters had passed a millage for the purpose of operating Lake County’s ambulance service. Lake County then contracted with Life EMS to provide two ambulances a day to service the county. In 2002, plaintiff discovered that Life EMS was using one of the ambulances to transport residents of other counties in nonemergency circumstances. She informed the county board of commissioners (hereinafter “the board”) and other county officials that Life EMS was in breach of the contract, which posed a threat to the health and safety of county residents. Additionally, on September 28, 2004, as authorized by the board, $50,000 was transferred from the ambulance account to a 911 account to use for a “mapping project.” Plaintiff testified that on November 1, 2004, during a mapping meeting, plaintiff objected to the transfer, claiming that it violated the millage proposal and explaining that she had obtained a grant to cover the cost of the mapping project. She further stated that she had previously made similar objections regarding the transfer to the board and at a county finance committee meeting. Later, the board voted to return the funds to the ambulance account, which occurred on November 12, 2004. Also, on November 10, 2004, the board voted to merge two county employment positions. As a result of the merger, plaintiffs position was eliminated. Plaintiff received official notice of her termination on December 22, 2004, which explained that her position was eliminated because of “budget problems” and that the county was “forced to take cost cutting measures in order to balance its budget.” However, according to the proposed county budget as of October 29, 2004, the position of 911 director was fully funded at that time. In January 2005, plaintiff filed a whistleblower claim under MCL 15.362, asserting that she was terminated as result of her complaints regarding the funds transfer and Life EMS’s ambulance service. Defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing that plaintiff had not met her burden of establishing a prima facie case under the WPA because plaintiff did not engage in “protected activity” and had not provided sufficient evidence to support causation. The trial court denied defendants’ motion, and the jury returned a verdict in plaintiffs favor. Defendants appealed, and the Court of Appeals, holding that plaintiff was not engaged in protected activity under the WPA, reversed the trial court’s denial of defendants’ motion and remanded the case to the trial court for the entry of an ‘order granting summary disposition to defendants. Debano-Griffin v Lake Co, unpublished opinion per curiam of the Court of Appeals, issued October 15, 2009 (Docket No. 282921). Plaintiff sought leave to appeal, and, in lieu of granting leave to appeal, this Court reversed the judgment of the Court of Appeals and remanded the case to that Court for consideration of the argument raised by defendants but not addressed by the Court of Appeals during its initial review of the case. Debano-Griffin v Lake Co, 486 Mich 938 (2010). On remand, the Court of Appeals held that plaintiff had failed to establish a genuine issue of material fact on the causation element of her claim, relying primarily on West, and again reversed the trial court’s order denying defendants’ motion for summary disposition. Debano-Griffin v Lake Co (On Remand), unpublished opinion per curiam of the Court of Appeals, issued August 25, 2011 (Docket No. 282921). We granted plaintiffs application for leave to appeal to consider “(1) whether the plaintiff established a causal connection between her protected activity and the adverse employment action” and (2) whether a whistleblower may challenge an adverse employment decision, which is claimed to be a matter of business judgment that was based on a fiscal or budgetary reason, as a mere pretext over the defendants’ assertion that the separation of powers principle prevents the judiciary from examining the budgetary decisions of a legislative body. [Debano-Griffin v Lake Co, 491 Mich 874 (2012).] II. STANDARD of review We review de novo a trial court’s ruling on a motion for summary disposition. Chandler v Dowell Schlum-herger Inc, 456 Mich 395, 397; 572 NW2d 210 (1998). Because defendants focused their argument supporting their motion for summary disposition on MCR 2.116(0(10), we must ask whether a genuine issue of material fact exists when, viewing the evidence in a light most favorable to the nonmoving party, the “record which might be developed . . . would leave open an issue upon which reasonable minds might differ.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997) (citations and quotation marks omitted). Likewise, this Court reviews de novo constitutional questions, including those concerning the separation of powers. People v Garza, 469 Mich 431, 433; 670 NW2d 662 (2003). III. ANALYSIS Under the WPA, a plaintiff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3) “a causal connection exists between the protected activity” and the adverse employment action. Chandler, 456 Mich at 399. However, the only issue that we must decide in this case is causation. Because whistleblower claims are analogous to other antiretaliation employment claims brought under employment discrimination statutes prohibiting various discriminatory animuses, they “should receive treatment under the standards of proof of those analogous [claims].” Shallal, 455 Mich at 617. Specifically, this case requires application of the burden-shifting framework set forth in McDonnell Douglas. See, e.g., Hazle, 464 Mich at 462-466 (applying the McDonnell Douglas framework in the context of alleged discrimination in employment). Absent direct evidence of retaliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link exists between the whistleblowing act and the employer’s adverse employment action. See Hazle, 464 Mich at 462-463. A plaintiff may “ ‘present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of unlawful [retaliation].’ ” Id. at 462, quoting DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 537-538; 620 NW2d 836 (2001). Once a plaintiff establishes a prima facie case, “a presumption of [retaliation] arises” because an employer’s adverse action is “more likely than not based on the consideration of impermissible factors” — for example, here, plaintiffs protected activity under the WPA — if the employer cannot otherwise justify the adverse employment action. Hazle, 464 Mich at 463 (citations and quotation marks omitted). The employer, however, may be entitled to summary disposition if it offers a legitimate reason for its action and the plaintiff fails to show that a reasonable fact-fin