DEBBIE L MANNS V DENNIS DAVID
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STATE OF MICHIGAN
COURT OF APPEALS
DEBBIE L. MANNS,
UNPUBLISHED
June 19, 2007
Plaintiff-Appellant,
v
No. 274062
Wayne Circuit Court
LC No. 04-423050-NZ
DENNIS DAVID, and THE CITY OF
SOUTHGATE,
Defendants-Appellees.
Before: Bandstra, P.J., and Zahra and Fort Hood, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants. We affirm.
Defendant David’s1 predecessor as mayor appointed plaintiff to the position of Southgate
City Administrator on February 14, 2000. When plaintiff accepted this position, she understood
that the City Administrator is an at-will employee, who serves at the “exclusive pleasure of the
mayor,” and that if the mayor were defeated in a reelection bid, a new mayor would be free to
select a new City Administrator and would have no obligation to retain plaintiff in that position.
Shortly after defendant won election as mayor, in November 2003, he advised plaintiff that he
would not be retaining her as City Administrator. In her complaint, plaintiff alleged that
defendant wrongfully terminated her employment because: (1) she refused to violate the law by
assisting defendant in firing Southgate’s chief of police without just cause to do so and (2) she
was involved in an investigation of a sexual harassment complaint against defendant while
defendant was employed as a Southgate police officer, for which plaintiff recommended that
defendant be disciplined. Defendant denied plaintiff’s allegations, explaining that his decision
not to retain plaintiff as City Administrator resulted from his view of the City Administrator as
the mayor’s “right hand man” and his lack of comfort retaining his former opponent’s “right
hand person” to be his confidant and to “run the city” in accordance with his philosophy.
1
Because this action concerns only conduct by defendant David in his role as mayor, with
defendant Southgate’s alleged liability being vicarious, we refer to David singularly as
“defendant” throughout this opinion.
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Defendants moved for summary disposition of plaintiff’s complaint, pursuant to MCR
2.116(C)(7), (8) and (10) on the basis that: (1) defendant’s decision not to retain plaintiff as City
Administrator was within the scope of his executive authority as mayor and therefore, that
plaintiff’s claim for wrongful discharge was barred by immunity, and (2) plaintiff failed to
establish any causal link between her participation in the investigation of the prior sexual
harassment claim against defendant and defendant’s decision, more than two years later, not to
retain her as City Administrator following his election as mayor. The trial court agreed and
granted defendants’ motion.2
On appeal, plaintiff first argues that the trial court erred in determining that defendant
acted within the scope of his executive authority as mayor when he terminated plaintiff’s
employment because she refused to violate the law by firing or agreeing to fire the chief of
police without just cause. We disagree.
This Court reviews a trial court’s decision on a motion for summary disposition pursuant
to MCR 2.116(C)(7) de novo on the basis of the entire record to determine if the moving party is
entitled to judgment as a matter of law. Davis v City of Detroit, 269 Mich App 376, 378; 711
NW2d 462 (2005). As our Supreme Court explained in Ross v Consumers Power Co (On
Rehearing), 420 Mich 567, 592; 363 NW2d 641 (1984), “Judges, legislators and the highest
executive officials of all levels of government are absolutely immune from all tort liability
whenever they are acting within their respective judicial, legislative and executive authority.”
While the “intentional use or misuse of a badge of governmental authority for a purpose
unauthorized by law is not the exercise of a governmental function,” Marrocco v Randlett, 431
Mich 700, 707-708; 433 NW2d 68 (1988) (quoting Smith v Dep’t of Public Health, 428 Mich
540, 544, 611; 410 NW2d 749 (1987), the absolute immunity afforded to executive officials
acting within their authority is not subject to any intent or “malevolent-heart exception.”
American Transmissions, Inc v Attorney General, 454 Mich 135, 143-144; 560 NW2d 50 (1997).
Allegations that an official commits intentional torts or acts with an improper or unlawful motive
or purpose are “meaningless” where the complained-of conduct is within the official’s authority.
Armstrong v Ypsilanti Twp, 248 Mich App 573, 593-594; 614 NW2d 321 (2001). Simply stated,
regardless the official’s motivation, the relevant inquiry is whether he acted within the scope of
his authority. American Transmissions, supra at 144. If so, the official is absolutely immune
from tort liability. Ross, supra at 592. Whether an official’s acts are within his authority
“depends on a number of factors, including the nature of the specific acts alleged, the position
held by the official alleged to have performed the acts, the charter, ordinances, or other local law
defining the official’s authority, and the structure and allocation of powers in the particular level
of government.” Id. at 711.
There is no dispute that the mayor is the highest executive official of the City of
Southgate government. Therefore, the question presented is whether defendant was acting
2
Plaintiff also asserted a claim for defamation relating to statements defendant allegedly made
regarding plaintiff’s performance as City Administrator for Southgate, which was also dismissed
by the trial court pursuant to MCR 2.116(C)(8). Plaintiff is not appealing that ruling.
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within his executive authority when he decided not to reappoint plaintiff to the position of City
Administrator. In this regard, the Southgate Charter provides in relevant part:
Sec 64 Appointment of officers; terms.
(a)
Except as otherwise provided in this Charter, all department heads
of the departments [sic], and members of the commissions and boards, of the City
government, whether the same be established by this Charter or by act of Council,
shall be appointed by the Mayor and the names of such appointees shall be
certified, in writing, to the City Clerk on or before the second Monday in
December following each regular biennial City election and at such other times as
may be required to fill vacancies or to replace any head of a department or
member of a commission or board who shall have been removed from office;
provided, however, that the City Attorney and Assessor shall be appointed by the
Mayor, but such appointment shall not be effective until it is confirmed by the
majority of the City Council.
***
(c)
The terms of office of each head of the departments of the City
government and of members of all commissions and boards shall commence on
the day following the second Monday in December following each regular
biennial City election and upon the date of certification to the City Clerk in the
case of appointees to fill a vacancy or to replace the head of any department or
member of a commission or board who is removed from office.
(d)
Unless a definite term of office is specified in this Charter for the
head of any department of the City government, such department heads shall hold
office at the discretion of the Mayor; provided however, that no officer shall
continue to hold office after the second Monday in December following a regular
biennial City election unless he shall be reappointed for a new term. (Emphasis
added.)
We agree with the trial court that it was within defendant’s executive authority under the
City Charter to decide not to retain plaintiff as City Administrator. Indeed, plaintiff did not
dispute that defendant had the authority to decline to reappoint her following his election as
mayor. Instead plaintiff argued, relying on Marrocco, supra at 700, that defendant’s decision not
to reappoint her was premised on an improper motive, and therefore, was outside his executive
authority as mayor. However, Marrocco does not support plaintiff’s argument.
In Marrocco, our Supreme Court concluded, “the highest executive officials of local
government are not immune from tort liability for acts not within their executive authority.”
Marrocco, supra at 710-711 (emphasis added). The Court observed that under the applicable
portions of the city code the defendant mayor-elect lacked the authority to engage in the
complained-of conduct, and therefore, that conduct was not within his executive authority and he
would not be entitled to the defense of immunity for tort claims arising from that conduct. Id. at
709-710. The Court also concluded, on the limited record before it, that it “was questionable”
whether other actions taken by the mayor-elect and by the city treasurer were within their
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respective authority and remanded the case to the trial court for an initial determination of the
scope of authority of the officials at issue under the city code. Id. at 710-711. However,
nowhere in Marrocco did the Court provide that an official is not immune from tort liability for
actions taken within his executive authority because of an improper motive. Rather, the Court
clearly concluded that it is the actions themselves that determine whether immunity applies; an
official is not entitled to immunity only if his actions exceed his authority, without regard to his
motive for those actions. Here, unlike in Marrocco, there is no question that defendant was
acting within the scope of his executive authority when he decided not to retain plaintiff as City
Administrator.3
The instant case is akin to that presented in Armstrong, supra at 594. In Armstrong, the
plaintiff alleged among other things that the defendants wrongfully eliminated funding for the
plaintiff’s administrative position within the township government, essentially terminating his
employment, for a number of improper reasons, including his age, his medical condition and his
involvement in attempting to organize employees into a union. This Court first concluded that it
was within the defendants’ statutory authority to eliminate funding for the plaintiff’s position.
This Court then explained that “[t]he fact that [the plaintiff] alleged that [the] defendants
committed intentional torts, and that they had an improper motive and purpose in eliminating his
position along with an unlawful intent, is meaningless in light of the language in American
Transmissions because as we have held, defendants were acting within the scope of their
statutory authority in eliminating that position.” Id.
Pursuant to American Transmission, supra at 143-144, and Armstrong, supra at 593-594,
defendant’s motivation for his decision not to reappoint plaintiff as City Administrator is
irrelevant; defendant is entitled to absolute immunity from tort liability for that decision because
it was within his authority to decline to retain plaintiff in that position. Ross, supra at 592.
Therefore, the trial court properly granted defendant’s motion for summary disposition, pursuant
to MCR 2.116(C)(7), on count I of plaintiff’s complaint.
In her reply brief on appeal, plaintiff argues for the first time that Southgate Charter
sections quoted above apply only to department heads, that the City Administrator is not a
department head, and that as a result, the Charter does not provide defendant with the executive
authority to rescind her appointment as City Administrator. Initially, we note that this argument
was not raised below, and therefore, it is unpreserved. Fast Air, Inc v Knight, 235 Mich App
541, 549; 599 NW2d 489 (1999). Further, plaintiff acknowledged below that defendant had the
authority to decline to reappoint her as City Administrator, but argued that his motivation
rendered his conduct outside that authority. She now attempts to argue that defendant lacked any
3
On appeal, plaintiff also relies on Baker v Couchman, 271 Mich App 174; 721 NW2d 251
(2006), in which this Court held that a superintendent was not entitled to immunity from an
allegation that he tortiously interfered with the employment relationship of the deputy sheriff
employed as the school’s resource officer, because the superintendent’s actions in interfering
with the plaintiff’s investigation of various incidents was not within his executive authority.
However, our Supreme Court has reversed that decision. Baker v Couchman, 477 Mich 1079;
729 NW2d 520 (2007). Therefore, it affords no support to plaintiff’s argument.
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such authority in the first place. “[A] party may not take a position in the trial court and
subsequently seek redress in an appellate court that is based on a position contrary to that taken
in the trial court.” Living Alternatives for the Developmentally Disabled, Inc v Dep’t of Mental
Health, 207 Mich App 482, 484; 525 NW2d 466 (1994). Finally, a reply brief must be confined
only to a rebuttal of the appellee’s arguments; raising a new issue in a reply brief does not
properly present that issue for appeal. MCR 7.212(G); Blazer Foods, Inc v Restaurant
Properties, Inc, 259 Mich App 241, 252; 673 NW2d 805 (2003). For these reasons, it is within
this Court’s discretion to decline to address the merits of this argument. Id.
That said, plaintiff’s own words belie the merits of her argument. During her deposition,
plaintiff acknowledged that she understood that the City Administrator was an at-will employee
who serves at the “exclusive pleasure of the mayor” and that the mayor could sever that
relationship at any time with or without cause. She also understood that a change in mayor could
result in her losing her job and that nothing in the Charter provided for her continued
employment in a new administration absent reappointment by the new mayor. Similarly, in a
letter plaintiff authored supplementing her application for another position, plaintiff again
acknowledged that the Southgate City Administrator serves at the “exclusive pleasure of the
Mayor” and is “an at-will employee,” and she observed that defendant’s decision not to
reappoint her, “no matter how unfortunate for [her, was] well-based within the democratic
framework of the Mayor-City Council form of government.” Thus, it is clear that everyone
involved – including plaintiff – understood that “the structure and allocation of powers” within
the Southgate government clearly provided the mayor with the executive authority to replace
plaintiff as City Administrator at his discretion. Marrocco, supra at 711. Therefore, plaintiff’s
claim for wrongful termination is barred by the absolute governmental immunity from tort
liability afforded to that decision. Ross, supra at 592.
Plaintiff also argues that the trial court erred in concluding that plaintiff failed to establish
a genuine issue of material fact regarding the existence of a causal connection between her
participation in the investigation of a sexual harassment complaint against defendant while he
was serving as a member of the Southgate police department and defendant’s decision to
terminate plaintiff’s employment as City Administrator following his election as mayor. We
disagree.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003); Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). As this Court explained in Barrett v
Kirtland Community College, 245 Mich App 306, 315; 628 NW2d 63 (2001):
This Court has interpreted the retaliation provision of the [civil rights act],
MCL § 37.2701(a)[], to require that a plaintiff prove a prima face case by
showing:
(1) that the plaintiff engaged in a protected activity, (2) that this
was known by the defendant, (3) that the defendant took an
employment action adverse to the plaintiff, and (4) that there was a
causal connection between the protected activity and the adverse
employment action.
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To establish causation, the plaintiff must show that his participation in activity
protected by the [civil rights act] was a “significant factor” in the employer’s
adverse employment action, not just that there was a causal link between the two.
[Citations omitted.]
A causal connection between protected activity and an adverse employment action “can be
established through circumstantial evidence, such as close temporal proximity between the
protected activity and adverse actions, as long as the evidence would enable a reasonable factfinder to infer that an action had a . . . retaliatory basis.” Rymal v Baergen, 262 Mich App 274,
303; 686 NW2d 241 (2004). However, “[s]ummary disposition for the defendant is appropriate
when a plaintiff cannot factually demonstrate a causal link between the protected activity and the
adverse employment action.” West v General Motors Corp, 469 Mich 177, 184; 665 NW2d 468
(2003).
It is undisputed that participation in an investigation of a sexual harassment complaint is
protected activity. MCL 37.2701(a). It is also undisputed that defendant took an adverse
employment action against plaintiff when he declined to retain her as City Administrator.
However, we agree with the trial court that plaintiff presented no evidence establishing or
tending to establish either that defendant knew of her role in investigating the complaint or that
such participation was a significant factor in defendant’s decision not to reappoint plaintiff.
During her deposition, plaintiff acknowledged that she never spoke to defendant about
the complaint or disciplined him directly for that complaint. Rather, plaintiff directed the chief
of police to address the complaint with defendant. Plaintiff did not inquire of the chief regarding
the content of his discussions with defendant and thus, had no knowledge whether the chief
mentioned plaintiff’s role regarding the complaint to defendant. Defendant’s predecessor
testified that she observed the chief advise plaintiff that he had spoken to defendant about the
complaint and had disciplined him. Still, there is no testimony whatsoever establishing that
defendant was advised or knew of plaintiff’s participation in the investigation of the complaint.
Plaintiff argues that such knowledge can be inferred from defendant’s less than credible denial of
any knowledge of the complaint prior to commencement of the instant action. However, plaintiff
offered no evidence from which a fact-finder could reasonably infer that defendant was aware of
plaintiff’s participation regarding the complaint (as distinct from knowledge of the existence of
the complaint itself).
Further, even if defendant’s knowledge of plaintiff’s role is presumed, plaintiff offered no
evidence that her participation regarding the complaint was a significant factor in defendant’s
decision not to retain her as City Administrator. Plaintiff acknowledged that defendant made no
mention of the complaint when he discussed his decision not to reappoint her. Plaintiff also
acknowledged that she could offer no testimony or documentary evidence to support a
conclusion that defendant declined to retain her as City Administrator because of her role
regarding the complaint. Plaintiff asserts that given that defendant was not in a position to
retaliate against plaintiff until 2003, that he “is a liar” as evidence by his “claimed ignorance”
that there was any such complaint against him, that he terminated her employment without
reviewing her performance or personnel files, and that he “obviously held women in extremely
low regard,” a reasonable jury could conclude that defendant retaliated against plaintiff for
recommending that he be disciplined as a result of the complaint. However, the only basis
presented for inferring a causal connection between plaintiff’s participation in the investigation
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of the complaint and defendant’s decision not to retain her as City Administrator is the mere fact
that plaintiff’s participation in the investigation preceded defendant’s decision. That an adverse
employment action temporally follows a protected activity does not establish causation. Rather,
“in order to show causation in a retaliatory discrimination case, ‘[p]laintiff must show something
more than merely a coincidence in time between protected activity and adverse employment
action.’” Garg v Macomb County Community Mental Health Services, 472 Mich 263, 286; 696
NW2d 646 (2005) (quoting West, supra at 186). Plaintiff presented no evidence establishing or
tending to establish that her participation in investigating the complaint was “a significant factor”
in defendant’s decision not to retain her as City Administrator. Therefore, plaintiff failed to
establish a prima facie case of retaliatory discharge, Barrett, supra at 306, and the trial court
properly granted defendant’s motion for summary disposition on this count.
We affirm.
/s/ Richard A. Bandstra
/s/ Brian K. Zahra
/s/ Karen M. Fort Hood
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