In a technically-unanimous opinion, the Michigan Supreme Court reversed the Court of Appeals and remanded a Whistleblowers' Protection Act (WPA) case for reinstatement of a trial verdict for plaintiff. It was technically unanimous since Justice Zahra did not participate because he was on the Court of Appeals' panel that reversed the trial court's denial of summary disposition to defendants, and Justice McCormack did not participate, presumably since argument occurred before her tenure began.
Debano-Griffin v. Lake County and Lake County Board of Commissioners had been up to the Court of Appeals three times before, with unpublished opinions on August 25, 2011, December 16, 2010, and October 15, 2009. On one of those prior occasions, then-Judge Zahra held that plaintiff failed to establish a genuine issue of material fact and ordered her case dismissed.
The Michigan Supreme Court reversed, holding that under West v. General Motors Corp., 469 Mich. 177 (2003), the plaintiff demonstrated more than a temporal relationship between her protected activity and her termination. Accordingly, she made out a prima facie case of WPA discrimination. Plaintiff then put forward enough to challenge defendant's proferred non-retaliatory motive for terminating her employment. Because plaintiff's argument was that the alleged non-retaliatory motive was itself a pretext and a false justification, and not that it was not wise, shrewd, prudent or competent, the business-judgment rule did not bar her rebuttal argument. In addition, our Supreme Court also rejected the Board's separation-of-powers argument.
Ms. Debano-Griffin began working in 1998 as Lake County's 911 Director. County voters had approved a 911 millage, and the County contracted with Life EMS to run two ambulances per day for its residents. In 2002, the plaintiff discovered and reported to the Board that Life EMS was using one of the two ambulances for non-emergency runs to other counties, arguing that Life EMS was in breach of contract and endangering the effectiveness of the emergency service for which the County had contracted. Plaintiff also complained in September 2004 that the Board's transfer of $50,000 from the 911 millage account to a "mapping project" was both unnecessary, since she had obtained a grant for the project, and that it was arguably in violation of the millage terms. The Board voted to return the money to the ambulance account, but at essentially the same time, voted to merge two county positions and eliminate the plaintiff's job. Although the prior month's budget had shown her position as fully funded, the Board notified the plaintiff that her position elimination was necessary for budgetary reasons.
The trial court denied defendants' motion for summary disposition. The jury returned a verdict after trial for plaintiff, and defendants appealed. The Court of Appeals reversed the verdict multiple times in the complex procedural history of this case, but the Michigan Supreme Court has now agreed that the jury had enough to find a WPA violation.
Something more than a temporal connection between the protected activity and the adverse employment action is required to show causation. The Supreme Court held that the plaintiff had that here because during a 12-day period in which plaintiff complained about the funds transfer and ambulance services, her position went from fully-funded to non-existent. A rational juror could have found that the Board's action was influenced by the plaintiff's complaints, since it would be reasonable to conclude that the budget had not so deteriorated in 12 days. The Court also emphasized that when, as here, the entity that directly receives the plaintiff's complaints is also the one taking the adverse employment action, the inference is strengthened that one caused the other. It also helped the plaintiff that the Board remedied a potentially unlawful act only after the plaintiff's complaint about it, something it seems it would not have done otherwise and may not have wanted to do.
Defendants offered an audit report that it argued showed financial strain, as well as the affidavit of the county clerk claiming that the County was having severe financial difficulties, to support its argument that a legitimate justification motivated termination of the plaintiff. However, the plaintiff had sufficient evidence to put forth an argument that this justification was false, including parts of the audit report that suggested the County was not in crisis, as well as a credibility challenge to the county clerk's affidavit. The plaintiff offered minutes of a county personnel committee meeting in 2004 where several county employees, including the clerk, asked for a 2005 raise, as well as additional new hires and raises in the Central Dispatch, also in 2005. This was not a challenge to the wisdom of a County decision that the budget required cutting the plaintiff's job; it was a challenge to the truth of the justification, and therefore it was not barred by the business-judgment rule.
Finally, the Supreme Court rejected the legislative separation of powers argument that the Board's decision could not be challenged, because WPA expressly waives immunity, and because the separation-of-powers defense only applies when the Board has not committed an illegal act and exercises legitimate discretion. Therefore, the trial court is permitted to give plaintiff a forum to argue that the Board's act was illegal in the first place and not within its discretion.