CHERYL DEBANO-GRIFFIN V LAKE COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
CHERYL DEBANO-GRIFFIN,
UNPUBLISHED
October 15, 2009
Plaintiff-Appellee,
v
LAKE COUNTY and LAKE COUNTY BOARD
OF COMMISSIONERS,
No. 282921
Lake Circuit Court
LC No. 05-006469-CZ
Defendants-Appellants.
Before: Zahra, P.J., and Whitbeck and M. J. Kelly, JJ.
M. J. KELLY, J. (dissenting).
I conclude that plaintiff Cheryl Debano-Griffin presented evidence from which a
reasonable trier of fact could conclude that she was engaged in an activity protected under the
Whistleblowers Protection Act (WPA), MCL 15.361 et seq. and that her termination was
causally related to her engagement in the protected activity. For this reason, the trial court did
not err when it denied defendants Lake County and Lake County Board of Commissioners’ (the
Board) motion for summary disposition. Because I would affirm on this basis, I must
respectfully dissent.
I. Summary Disposition
A. Standard of Review
On appeal, Lake County and the Board argue that they were entitled to summary
disposition of Debano-Griffin’s WPA claim because Debano-Griffin failed to present evidence
that she was engaged in protected activity and that her termination was causally related to her
engagement in protected activity. For that reason, Lake County and the Board ask this Court to
reverse the judgment in Debano-Griffin’s favor and remand for entry of summary disposition in
their favor. This Court reviews de novo a trial court’s decision on a motion for summary
disposition. Johnson Family Ltd Partnership v White Pine Wireless, LLC, 281 Mich App 364,
378; 761 NW2d 353 (2008). In addition, this Court reviews de novo questions of law, such as
the proper interpretation of a statute or court rule and the application of legal doctrines. Estes v
Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008).
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B. Protected Activity under the WPA
In order to establish a prima facie case under the WPA, a plaintiff must show that “(1) the
plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged
or discriminated against, and (3) a causal connection exists between the protected activity and
the discharge or adverse employment action.” West v Gen Motors Corp, 469 Mich 177, 183184; 665 NW2d 468 (2003). “An employee is engaged in protected activity under the
Whistleblowers’ Protection Act who has reported, or is about to report, a suspected violation of
law to a public body.” Shallal v Catholic Social Services, 455 Mich 604, 610; 566 NW2d 571
(1997); see also Chandler v Dowell Schlumberger, Inc., 456 Mich 395, 399; 572 NW2d 210
(1998).
Lake County and the Board argue that the trial court should have granted summary
disposition in their favor because Debano-Griffin did not present any evidence that she was
engaged in a protected activity. Specifically, they argue that, in order to survive summary
disposition, Debano-Griffin had to present evidence that she reported an actual or suspected
violation of an actual law. In other words, Lake County and the Board argue that, as a matter of
law, a plaintiff is not engaged in protected activity if the plaintiff merely suspects the existence
of a law, suspects that it might have been violated, and then reports the suspected violation of the
suspected law.
In relevant part, the WPA prohibits an employer from discharging, threatening, or
otherwise discriminating against an employee regarding the employee’s terms and conditions of
employment “because the employee . . . reports or is about to report, verbally or in writing, a
violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of
this state, a political subdivision of this state, or the United States to a public body . . . .” MCL
15.362. In this case, the key provision of this statute is the reference to “a violation or suspected
violation of a law or regulation or rule promulgated pursuant to law . . . .” Id.
The Legislature’s reference to a violation of a law or regulation or rule that has been
“promulgated” indicates that the Legislature only intended to protect persons who report or are
about to report activities that are violations or suspected violations of existing laws, regulations
or rules. From this, one might be tempted to conclude that the WPA only protects persons who
knowingly report actual or suspected violations of actual laws, regulations or rules—in other
words, the employee’s reporting activities must relate to an existing and identifiable law,
regulation or rule. Under this reading, a plaintiff would have to prove that he or she knew about
the existence of a law, regulation, or rule, and then reported activities that he or she knew or
suspected violated that law, regulation or rule. However, it must be emphasized that the statute
does not just protect employees who report an actual violation of a law, regulation or rule; the
statute explicitly protects persons who report “a suspected violation” of a law, regulation or rule.
MCL 15.362. The prepositional phrase “of a law or regulation or rule promulgated pursuant to
law” modifies the type of violation—it does not alter the fact that the violation of the
promulgated law need only be suspected. Because the phrase “a suspected violation” clearly
refers to what the employee suspects, the most natural reading of the WPA is that the Legislature
intentionally extended protection to employees based on the employees’ subjective beliefs about
both the relevant facts and law—stated differently, an employee is still protected even if he or
she turns out to be mistaken about whether the reported activities actually violated a promulgated
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law, regulation or rule. And concomitantly, the employee would be protected even if it turns out
that the employee was mistaken about whether there was a promulgated law, regulation or rule
that applied to the facts that he or she reported.
Even if MCL 15.362 could plausibly be read to require a plaintiff to show that there is an
actual law underlying his or her report, I would not adopt that construction. There are a dizzying
array of laws, regulations and rules promulgated by a multiplicity of governmental units at every
level within the United States; and few, if any, employees will know about these laws or their
specific provisions.1 Instead, the majority of employees will have some vague—and in many
cases incorrect—understanding about the laws applicable to their situation. Because the WPA is
a remedial statute, it must be liberally construed in favor of the persons the Legislature intended
to benefit. Chandler, 456 Mich at 406. The purpose of the WPA is to protect the public by
promoting the reporting of potentially illegal activity within businesses and government by those
who are most likely to be aware of it—the employees. See Shallal, 455 Mich at 612 (noting that
the WPA prohibits employer reprisals against whistleblower employees “for the purpose of
encouraging employees to report violations.”); see also Dolan v Continental Airlines, 454 Mich
373, 378-379; 563 NW2d 23 (1997). The WPA protects the public by protecting employees who
report suspected violations of law. By limiting the protection afforded by the WPA to only those
employees who report violations or suspected violations of specific laws, regulations or rules that
are actually known to the employee, the majority severely limits the scope of the protection
afforded to employees under the WPA. Thus, the majority’s construction actually defeats the
remedial purposes of the statute by discouraging employees from reporting a suspected violation
of law where the employee is uncertain whether there is a specific law covering the conduct at
issue. Indeed, under such an interpretation, an employee would have to consult with a lawyer
before reporting a violation or suspected violation in order to ensure that he or she is reporting
activities that plausibly implicate a violation of an actual law—and even then there would be no
guarantee that the lawyer correctly assessed the situation. Because that understanding of MCL
15.362 is at odds with the most natural reading of the statute and at odds with its remedial
purpose, I reject that construction. Chandler, 456 Mich at 406. Debano-Griffin did not have to
show that she knew about a specific existing law and reported a violation or suspected violation
of that law in order to establish that she was engaged in a protected activity.
I also do not share Lake County and the Board’s fear that an interpretation that permits
suits based on a “suspected violation of a suspected law” will result in a multitude of frivolous
WPA suits. Although the Legislature has extended the protection afforded by the WPA to an
employee based on the employee’s subjective understanding about the law, the report must
nevertheless be made in a good faith belief that an actual law has been violated. See Shallal, 455
Mich at 621-622 (explaining that a plaintiff who reported a violation of law in order to shield
1
Indeed, the reality is that a creative lawyer can probably find some law, regulation or rule after
the fact, which was plausibly implicated by the employee’s report. However, forcing plaintiffs
to engage in such revisionist history during the summary disposition phase would serve no useful
purpose. Instead, the focus should be on whether the employee had a good faith belief that he or
she was reporting a violation or suspected violation of a law, regulation or rule at the time the
employee made the report. See Shallal, 455 Mich at 621-622.
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herself from termination would not be entitled to the protection of the WPA). Hence, if DebanoGriffin had made the reports for some purpose unrelated to protecting the public, such as part of
a “turf war” with other county employees, she would not be entitled to the protection of the
WPA. See id. at 621 (noting that, in order for a report to be in good faith, the employee must
make the report out of a desire to inform the public on matters of public concern and not personal
vindictiveness). Likewise, if the facts reported were so clearly innocuous that no reasonable jury
could conclude that Debano-Griffin held a good faith belief that the reported activities violated
an actual law, the trial court would have been warranted in dismissing the WPA claim. Thus—to
use an example proffered by Lake County and the Board—the trial court in this case could
properly have concluded that Debano-Griffin was not engaged in a protected activity had her
WPA claim been premised solely on a report that Lake County unlawfully permitted people to
park red cars in its parking lot. Similarly, had Debano-Griffin’s WPA claim been premised
solely on a report which did not on its face implicate a law, regulation or rule, the trial court
would also have been justified in concluding that she had not established that she was engaged in
a protected activity. See MCR 2.116(C)(8). But none of these concerns are present in this case.
Here, Debano-Griffin presented evidence from which a reasonable jury could conclude that she
reported the allegedly inappropriate use of ambulances and the inappropriate transfer of funds in
a good faith belief that those actions amounted to a violation of an existing law, regulation or
rule or, in the case of the transfer, that it was done with the intent to ultimately use the funds in a
manner prohibited by law.2 Consequently, I would conclude that the trial court did not err when
it declined to dismiss Debano-Griffin’s WPA claim on this basis.
C. Causation
Lake County and the Board also argue that the trial court should have dismissed DebanoGriffin’s WPA claim because she failed to present evidence sufficient to establish a question of
fact as to whether her termination was causally related to her engagement in a protected activity.
Specifically, Lake County and the Board contend that the only evidence that Debano-Griffin
presented to support her theory that her position was eliminated in retaliation for her reporting a
suspected violation of law was the fact that her position was eliminated after she raised the
accounting irregularities. Because timing alone is inadequate to establish a question of fact on
causation, Lake County and the Board conclude that the trial court erred when it declined to
grant its motion for summary disposition under MCR 2.116(C)(10).
A plaintiff may not establish the causation element of a WPA claim solely by showing
that the adverse employment action occurred after the plaintiff engaged in protected activity
under the WPA. West, 469 Mich at 186 (stating that “a temporal relationship, standing alone,
does not demonstrate a causal connection between the protected activity and any adverse
2
I note that nothing within the WPA requires an employee to report only completed illegal acts.
An employee who reports on a conspiracy or attempt to violate a law, regulation or rule is
engaged in protected activity within the meaning of MCL 15.362. See MCL 750.92 (prohibiting
any person from taking any act towards the commission of an offense prohibited by law); MCL
750.157a (making it illegal to conspire to commit an offense prohibited by law or to commit a
legal act in an illegal manner).
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employment action.”). However, Debano-Griffin did not rely solely on the temporal proximity
of her reports and the ultimate decision to eliminate her position. At the summary disposition
phase,3 Debano-Griffin presented evidence that, if believed, established that the Board had
already determined to retain her position for the next year shortly before she began to raise
concerns about the ambulance service and the transfer of funds. There was also evidence that
shortly after she raised her concerns and informed the Board that she had reported the accounting
irregularity, the Board took two relevant actions: it eliminated her position and it returned the
funds that Debano-Griffin had alleged were improperly transferred. From the evidence that
Debano-Griffin’s position was funded, a reasonable jury could conclude that the Board had no
intention of eliminating her position before she reported her concerns about the ambulances and
transfer. Likewise, because the decision to eliminate Debano-Griffin’s position followed closely
after her reports and was closely linked with the Board’s decision to reverse the transfer of funds,
a reasonable jury could conclude that the Board’s decisions to reverse the transfer and eliminate
Debano-Griffin’s position were related and that the decision to eliminate her position was
motivated by a desire to retaliate against Debano-Griffin for publicly challenging the transfer.
Because Debano-Griffin presented sufficient evidence to establish a question of fact for the jury
on the issue of causation, the trial court did not err when it declined to grant Lake County and the
Board’s motion for summary disposition on this basis. MCR 2.116(C)(10).
D. Notice
Lake County and the Board finally argue that the trial court should have granted their
motion for summary disposition because Debano-Griffin failed to give them the required notice
that she reported a violation or suspected violation of law. See Roberson v Occupational Health
Ctrs of America, Inc, 220 Mich App 322, 326; 559 NW2d 86 (1996). However, Lake County
and the Board did not properly raise this argument before the trial court in their motion for
summary disposition. In civil cases, a party who fails to properly raise an issue before the trial
court waives any claim of error with regard to that issue on appeal. Walters v Nadell, 481 Mich
377, 387-388; 751 NW2d 431 (2008) (explaining that Michigan follows a raise or waive rule for
appellate review). Even if this issue had been properly raised, I would conclude that there was
no error warranting relief. There was ample evidence that Debano-Griffin reported her belief to
various Lake County agencies, including members of the Board, that the inadequate ambulance
service and transfer of funds were unlawful.
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On appeal, Debano-Griffin argues that, because her WPA claim proceeded to trial, this Court
should decline to address the sufficiency of her evidence at the summary disposition phase.
However, it is well settled that, after the final judgment or order, a party may challenge any order
leading up to the final judgment or order. People v Torres, 452 Mich 43, 57 n 14; 549 NW2d
540 (1996). This includes motions for summary disposition. See, e.g., Janczyk v Davis, 125
Mich App 683; 337 NW2d 272 (1983). Further, when reviewing a trial court’s decision on a
motion for summary disposition, this Court is limited to the evidence actually before the trial
court on the motion. Quinto v Cross & Peters Co, 451 Mich 358, 366 n 5; 547 NW2d 314
(1996). Therefore, this Court must review Lake County and the Board’s claims of error with
regard to the motion for summary disposition by reviewing the evidence raised by the parties
during the motion for summary disposition.
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For these reasons, I would affirm.
/s/ Michael J. Kelly
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