CHERYL DEBANO-GRIFFIN V LAKE COUNTY
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STATE OF MICHIGAN
COURT OF APPEALS
CHERYL DEBANO-GRIFFIN,
UNPUBLISHED
December 16, 2010
Plaintiff-Appellant,
v
LAKE COUNTY and LAKE COUNTY BOARD
OF COMMISSIONERS,
No. 282921
Lake Circuit Court
LC No. 05-006469-CZ
Defendants-Appellees.
ON REMAND
Before: ZAHARA, P.J., and WHITBECK and M. J. KELLY, JJ.
M. J. KELLY, J. (dissenting).
Respectfully, and for the reasons I set forth in my previous dissent with regard to the
issue of causation, I again must dissent.
Although we place into every opinion the standard of review under which we are bound
to examine the various issues that are presented to us, it here bears repeating—hopefully in a
non-rote manner—what that standard means. This Court reviews de novo a trial court’s decision
on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering,
Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). Nevertheless, we must do so by reference
to the arguments and evidence actually proffered by the parties before the trial court. Id. at 380381. Further, we must review the parties’ evidence in the light most favorable to the party
opposing the motion. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
Applying those standards to the evidence, in my view, demonstrates that Debano-Griffin plainly
established a question of fact on the issue of causation.
Lake County and the Board contended, and the majority has held, 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. It is well-settled that a plaintiff may not
establish the causation element of a Whistleblowers’ Protection Act (WPA) claim solely by
showing that the adverse employment action occurred after the plaintiff engaged in protected
activity under the WPA. West v General Motors Corp, 469 Mich 177, 186; 665 NW2d 468
(2003) (stating that “a temporal relationship, standing alone, does not demonstrate a causal
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connection between the protected activity and any adverse employment action.”). If that had
been all the evidence that Debano-Griffin had presented to the trial court in opposition to the
motion, summary disposition would have been appropriate. But it was not. Debano-Griffin did
not rely solely on the temporal relationship between her reports and the ultimate decision to
eliminate her position. At the summary disposition phase, 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 millage 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 linked with the
Board’s decision to reverse the transfer of funds, a reasonable jury could conclude (and
apparently did) 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 her for publicly challenging the transfer. The majority, inexplicably, simply
ignores this evidence.
Further, I would not consider any alternate bases for overturning the jury’s verdict in this
case. Lake County and the Board did not properly raise the issue of notice before the trial court.
Accordingly, I would not consider it. See Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d
431 (2008) (explaining that Michigan follows a raise or waive rule for appellate review). In
addition, although Lake County and the Board arguably made a limited burden-shifting argument
in their motion for summary disposition, on appeal to this Court, they did not present a proper
argument that the trial court erred when it denied their motion because they presented evidence
that there was a legitimate business reason for the decision and Debano-Griffin failed to rebut
that evidence. Indeed, they did not even address the evidence of pretext actually presented by
Debano-Griffin in opposition to their motion for summary disposition. Consequently, I conclude
that they abandoned any claim of error as to the burden-shifting approach. See Mitcham v
Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959). In any event, having reviewed the evidence
of pretext actually proffered in opposition to Lake County and the Board’s motion for summary
disposition, I conclude that Debano-Griffin presented evidence sufficient to establish a question
of fact on the issue of pretext.
Because I believe Debano-Griffin presented sufficient evidence to survive summary
disposition, I conclude that the trial court did not err when it declined to grant Lake County and
the Board’s motion. MCR 2.116(C)(10). I would affirm.
/s/ Michael J. Kelly
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