                                                                                      Michigan Supreme Court
                                                                                            Lansing, Michigan
                                                               Chief Justice:          Justices:



Syllabus                                                       Robert P. Young, Jr.    Michael F. Cavanagh
                                                                                       Stephen J. Markman
                                                                                       Mary Beth Kelly
                                                                                       Brian K. Zahra
                                                                                       Bridget M. McCormack

This syllabus constitutes no part of the opinion of the Court but has been             Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader.               John O. Juroszek


                                     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 plaintiff’s favor. Defendants appealed. The Court of Appeals,
       ZAHRA, P.J. (WHITBECK, J., concurring and M. J. KELLY, J., dissenting), in an unpublished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, P.J., 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 plaintiff’s 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 plaintiff’s 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 fully 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 plaintiff’s 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 plaintiff’s
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 be 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 board lawfully exercised its
authority when it eliminated plaintiff’s 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.




                                   ©2013 State of Michigan
                                                                           Michigan Supreme Court
                                                                                 Lansing, Michigan
                                                     Chief Justice:          Justices:



Opinion                                              Robert P. Young, Jr. Michael F. Cavanagh
                                                                          Stephen J. Markman
                                                                          Mary Beth Kelly
                                                                          Brian K. Zahra
                                                                          Bridget M. McCormack


                                                              FILED FEBRUARY 8, 2013

                            STATE OF MICHIGAN

                                     SUPREME COURT


 CHERYL DEBANO-GRIFFIN,

              Plaintiff-Appellant,

 v                                                            No. 143841

 LAKE COUNTY and LAKE COUNTY
 BOARD OF COMMISSIONERS,

              Defendants-Appellees.


 BEFORE THE ENTIRE BENCH (except ZAHRA and MCCORMACK, JJ.)

 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 plaintiff’s 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 plaintiff’s statutory claim merely examines whether the county board

of commissioners acted outside its constitutionally and legislatively granted powers.

Additionally, plaintiff’s 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 plaintiff’s 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.




                                            2
                            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, plaintiff’s

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




                                             3
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 15.362,1

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 plaintiff’s 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).




1
    MCL 15.362 states:

               An employer shall not discharge, threaten, or otherwise discriminate
        against an employee regarding the employee’s compensation, terms,
        conditions, location, or privileges of employment because the employee, or
        a person acting on behalf of 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, unless the
        employee knows that the report is false, or because an employee is
        requested by a public body to participate in an investigation, hearing, or
        inquiry held by that public body, or a court action.



                                             4
       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

plaintiff’s 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 Schlumberger Inc, 456 Mich 395, 397; 572 NW2d 210 (1998).

Because defendants focused their argument supporting their motion for summary

disposition on MCR 2.116(C)(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


                                              5
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 399.2 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


2
  This Court has previously determined that plaintiff was engaged in a “protected
activity,” see Debano-Griffin, 486 Mich 938, and there is no dispute that an “adverse
employment action” was taken against plaintiff.



                                             6
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, plaintiff’s 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-finder

could still conclude that the plaintiff’s protected activity was a “motivating factor” for the

employer’s adverse action. Id. at 464-465. “[A] plaintiff must not merely raise a triable

issue that the employer’s proffered reason was pretextual, but that it was a pretext for

[unlawful retaliation].” Id. at 465-466 (citations and quotation marks omitted).

       Against this backdrop, we must now determine whether plaintiff established a

prima facie case of unlawful retaliation and, if so, to what extent plaintiff may argue that

defendants’ budgetary justification for the elimination of her position was pretextual.

                         A. PLAINTIFF’S PRIMA FACIE CASE

       We hold that the Court of Appeals erred when it misapplied West to conclude that

plaintiff had failed to establish her prima facie case because she did not create a genuine



                                              7
issue of material fact regarding causation under the WPA. In West, 469 Mich at 186, a

majority of this Court stated that “a temporal relationship, standing alone, does not

demonstrate a causal connection between the protected activity and any 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. Id.

       In the present case, plaintiff does not rely solely on the fact that defendants

eliminated her position after she engaged in protected activity. To the contrary, plaintiff

presented evidence of a causal link that shows more than a “coincidence in time.” Id. at

186. Indeed, during a 12-day period when plaintiff made various complaints regarding

the funds transfer and ambulance services, plaintiff’s position went from fully funded to

nonexistent. From this, a rational juror could infer that the board had already decided to

fund plaintiff’s position until she publicly voiced her complaints. See Hazle, 464 Mich at

462.   This is especially so because one reasonable conclusion is that the county’s

financial situation could not have deteriorated in 12 days to the point that it had to

consider extreme cost-saving measures at that particular time.

       In addition, the fact that the same entity that made the decision to eliminate

plaintiff’s position, the board, was also the direct recipient of plaintiff’s complaints

strengthens the causal link between plaintiff’s protected activity and defendants’ adverse

action because it is reasonable to infer that the more knowledge the employer has of the

plaintiff’s protected activity, the greater the possibility of an impermissible motivation.

Similarly, it is reasonable to conclude that the more an employer is affected by the

plaintiff’s whistleblowing activity, the stronger the causal link becomes between the


                                            8
protected activity and the employer’s adverse employment action. In this case, the board

heeded plaintiff’s advice and returned the transferred funds back into the ambulance

fund. The fact that the board remedied its prior and potentially unlawful action lends

support to plaintiff’s position that defendants, because of plaintiff’s complaints, were

forced to do something that they would not have otherwise done and, thus, a reasonable

inference may be drawn that the board was motivated to eliminate plaintiff’s position

because of her complaints.3

      When viewed in a light most favorable to plaintiff, the foregoing facts support a

reasonable inference that plaintiff was the victim of unlawful retaliation, which

establishes her prima facie case and gives rise to a rebuttable presumption that defendants

unlawfully retaliated against plaintiff by eliminating her position. The next step in the

analysis requires that we consider the extent to which plaintiff may rebut defendants’

facially legitimate reason for its adverse action—that the board eliminated plaintiff’s

position because of the county’s impending financial crisis.




3
  In West, 469 Mich at 185, a majority of this Court noted that “[t]he evidence does not
show that either of the supervisors, whom plaintiff allegedly informed about the call to
the police, viewed the call as a matter of any consequence. Nor was either supervisor
involved in the decision to discharge plaintiff.” I continue to agree with Justice MARILYN
KELLY’s West dissent; however, the foregoing statement explains that when the same
individual (or in this case the board) is the recipient of or affected by the plaintiff’s
whistleblowing activity, the inference that the employer unlawfully retaliated against the
plaintiff becomes stronger.



                                            9
                   B. PLAINTIFF’S ABILITY TO SHOW PRETEXT

       As previously stated, defendants may rebut the presumption of retaliation and,

thus, are entitled to summary disposition if they offer a legitimate justification for the

elimination of plaintiff’s position unless plaintiff can show that defendants’ justification

was a pretext for unlawful retaliation. Defendants claimed that the board eliminated

plaintiff’s position out of economic necessity and, in support of their motion for summary

disposition, offered an audit report that, according to defendants, showed that the county

was suffering financial strain and required budget cuts. Defendants also offered the

affidavit of Shelly Myers, the Lake County Clerk and Register of Deeds, which stated

that the county was facing “severe financial difficulties.” Plaintiff responded, claiming

that defendants’ budgetary justification was pretextual and, instead, the board’s

motivating factor for the elimination of her position was punishment for her complaints

about the board’s allegedly illegal transfer of funds from the ambulance fund.

       Defendants argue that plaintiff cannot challenge defendants’ budgetary

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. We disagree.

                           1. BUSINESS-JUDGMENT RULE

       Regarding whether plaintiff may question defendants’ “business judgment,” we

stated in Hazle, 464 Mich at 476, that a “plaintiff cannot simply show that the employer’s

decision was wrong or mistaken, since the factual dispute at issue is whether

discriminatory animus motivated the employer, not whether the employer is wise,



                                            10
shrewd, prudent, or competent.” (Citation and quotation marks omitted.) And similarly,

in Dubey v Stroh Brewery Co, 185 Mich App 561, 565-566; 462 NW2d 758 (1990), the

Court of Appeals held that

       [t]here are three ways a plaintiff can establish that a defendant’s stated
       legitimate, nondiscriminatory reasons are pretexts: (1) by showing 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.

       In this case, plaintiff did not question whether the decision to eliminate her

position was “sound” or assert that it ineffectively combated the county’s alleged

financial crisis. Rather, plaintiff asserted that defendants’ proffered justification was

false or had no “basis in fact.” Id. at 565. In other words, plaintiff questioned whether

defendants’ decision was in fact an economic decision by questioning the propriety of the

county’s audit report and the credibility of Myers.        Specifically, plaintiff identified

financial figures in the audit report that suggested that the county was not facing a

budgetary crisis. Also, plaintiff discounted Myers’s credibility by offering the minutes of

a September 2004 county personnel committee meeting during which several county

officials, including Myers, requested a pay raise in 2005. Because defendants relied on

Myers’s representation of the county’s financial status to show that the board based its

decision to eliminate plaintiff’s position on legitimate budgetary concerns, arguably

Myers’s credibility was in issue, presenting a question for the trier of fact with regard to

whether defendants actually offered a legitimate justification for the board’s decision.

See Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973) (stating that “where the



                                             11
truth of a material factual assertion of a movant’s affidavit depends on the affiant’s

credibility, there inheres a genuine issue to be decided at a trial by the trier of fact and a

motion for summary judgment cannot be granted”).

       Moreover, even if defendants’ position that the county was facing economic

hardship had a “basis in fact,” plaintiff nonetheless provided evidence to show that

defendants’ budgetary justification was “not the actual factor[] motivating the

decision . . . .” See Dubey, 185 Mich App at 565-566. For example, plaintiff provided

the deposition testimony of James Martin, who worked at Lake County Central Dispatch.

He testified that during 2005 and 2006 defendants hired additional full-time employees.

Plaintiff also provided the county’s budget worksheet for 2005, which, in the budget-

request column, indicated that several 911 dispatchers would be given raises. Viewing

this evidence in the light most favorable to plaintiff, it is reasonable to conclude that even

if the county was facing economic difficulties, those difficulties were not the board’s

“motivating factor” when it eliminated plaintiff’s position. See Hazle, 464 Mich at 465.

       Thus, plaintiff has successfully established a genuine issue of material fact

regarding the causation element of her whistleblower claim because, when viewed in the

light most favorable to plaintiff, reasonable minds may differ with regard to whether

defendants’ facially legitimate economic motivation was based in truth or whether

plaintiff’s additional evidence showed that the motivating factor for the board’s adverse

decision was unlawful retaliation.




                                             12
                             2. SEPARATION OF POWERS

       Equally unpersuasive is defendants’ alternative argument: that despite the fact that

plaintiff might have offered sufficient evidence to create a triable issue of fact regarding

causation, plaintiff may not question the board’s decision to eliminate her position

because it would require judicial review of a legislative policy determination, violating

the separation of powers. Although defendants’ argument conflates legislative immunity

with separation of powers, we hold that neither doctrine precludes plaintiff’s claim or

ability to challenge defendants’ budgetary justification for eliminating plaintiff’s position

as a pretext for unlawful retaliation under the WPA.

       Defendants argue that the board is a legislative body and the board’s elimination

of plaintiff’s position was a legislative act. Regarding the latter assertion, defendants cite

Bogan v Scott-Harris, 523 US 44; 118 S Ct 966; 140 L Ed 2d 79 (1998). In Bogan, the

United States Supreme Court held that the termination of the plaintiff’s position was

legislative in nature because the discretionary policy decision “reach[ed] well beyond the

particular occupant of the office”; thus, the defendants, local city legislators, were

entitled to immunity. Id. at 49-51, 55-56. Bogan further reasoned that the determination

of whether an action is legislative “turns on the nature of the act, rather than on the

motive or intent of the official performing it.” Id. at 54. Indeed, this Court has reached a

similar conclusion regarding executive immunity. In American Transmissions, Inc v

Attorney General, 454 Mich 135, 143; 560 NW2d 50 (1997), we stated that “[t]he

Legislature’s grant of immunity . . . is written with utter clarity. We need not reach the




                                             13
concern that a malevolent-heart exception might not be workable, since the Legislature

has provided no such test.”4

       However, defendants’ argument ignores the fact that the WPA expressly waives

legislative immunity, making the act fully applicable to public employers. In Anzaldua v

Band, 457 Mich 530, 551-552; 578 NW2d 306 (1998), we stated that “[t]he Legislature

expressly applied the act to the state by including the state and its political subdivisions in

the definition of ‘employer.’ See MCL 15.361(b); MSA 17.428(1)(b). Because the state

is expressly named in the act, it is within the act’s coverage.” And notably, Anzaldua

explained that the waiver is consistent with the design of the WPA to “protect the public

from unlawful conduct by corporations and government bodies . . . by removing barriers

to the reporting of violations of law by employees.” Id. at 533. Thus, plaintiff’s claim is

not barred by legislative immunity.5

       Considering the merits of defendants’ separation-of-powers argument, the

Michigan Constitution states that “[t]he powers of government are divided into three

branches: legislative, executive and judicial. No person exercising powers of one branch

shall exercise powers properly belonging to another branch except as expressly provided


4
  See MCL 691.1407(5), which states that “[a] judge, a legislator, and the elective or
highest appointive executive official of all levels of government are immune from tort
liability for injuries to persons or damages to property if he or she is acting within the
scope of his or her judicial, legislative, or executive authority.”
5
  While Bogan and MCL 691.1407(5) involve the extent to which an individual legislator
may be immune from liability, this case is arguably distinguishable because only the
liability of the board as a legislative body is at issue. Thus, we decline to address
whether the naming of an individual board member as a defendant would have changed
the outcome of this case.



                                              14
in this constitution.” Const 1963, art 3, § 2. The authority of local governments derives

from article 7 of Michigan’s 1963 Constitution and from the Legislature. See Const

1963, art 7, § 1; see, also, City of Lansing v Edward Rose Realty, Inc, 442 Mich 626, 632

n 5; 502 NW2d 638 (1993). The Constitution states that county governments “shall have

legislative, administrative and such other powers and duties as provided by law.” Const

1963, art 7, § 8 (emphasis added).6        And the Legislature has delegated to county

government the authority to “[e]stablish rules and regulations in reference to the

management of the interest and business concerns of the county as the board considers

necessary and proper in all matters not especially provided for in this act or under the

laws of this state.” MCL 46.11(m) (emphasis added).

       In the present case, despite the board’s authority to make budgetary decisions,

judicial review of plaintiff’s whistleblower claim, which asserts that the board’s

budgetary justification for her termination was pretextual, does not violate the separation

of powers. We have held that

       [i]t is one of the necessary and fundamental rules of law that the judicial
       power cannot interfere with the legitimate discretion of any other
       department of government. So long as they do no illegal act, and are
       doing business in the range of the powers committed to their exercise, no
       outside authority can intermeddle with them . . . . [Detroit v Wayne Co
       Circuit Judge, 79 Mich 384, 387; 44 NW 622 (1890) (emphasis added).]
See, also, Veldman v Grand Rapids, 275 Mich 100, 113; 265 NW 790 (1936) (explaining

that a court’s inquiry into municipal affairs is limited to situations in which there exists “a

6
  Const 1963, art 7, § 8 refers to county boards of supervisors, but Const 1963, art 7, § 2
permits “the organization of county government in form different from that set forth in
this constitution . . . .”



                                              15
malicious intent, capricious action or corrupt conduct, something which shows the action

of the body whose acts are complained of did not arise from an exercise of judgment and

discretion vested by law in them”). As previously stated, plaintiff does not argue that the

board’s decision to eliminate her position was a product of unsound or unwise judgment.

Rather, plaintiff argues that the board’s decision was unlawful under the WPA and, thus,

its decision fell outside the otherwise legitimate discretion afforded to the board by the

Constitution and the Legislature. Thus, the trial court, by merely providing plaintiff a

forum in which to litigate her statutory claim under the WPA, did not infringe the board’s

legitimate exercise of its judgment and discretion.

       Accordingly, given that the WPA expressly waives legislative immunity, we hold

that the question whether the board lawfully exercised its authority when it eliminated

plaintiff’s position is subject to judicial review. To hold otherwise would essentially

allow defendants an impenetrable defense because plaintiff lacked direct evidence of

retaliation and would render futile the burden-shifting framework of McDonnell Douglas.

                                   IV. CONCLUSION

       In summary, we hold that the McDonnell Douglas framework applies to plaintiff’s

claim under the WPA because plaintiff lacked direct proof of a causal connection

showing that the board possessed a retaliatory motivation when it eliminated her position.

Additionally, the Court of Appeals erred when it concluded that plaintiff failed to show

more than a temporal relationship between the protected activity and the adverse

employment action. In this case, plaintiff provided additional evidence to establish her




                                            16
prima facie case—particularly, the fact that plaintiff’s position became unfunded within

12 days, which overlapped with when plaintiff engaged in the protected activity.

       Lastly, we hold that plaintiff successfully rebutted defendants’ proffered budgetary

justification for the board’s adverse decision. And plaintiff’s ability to challenge the

motives of the board did not call into question the board’s business judgment because

plaintiff’s argument was that the budgetary decision had no basis in fact, not that its

decision was unwise. Similarly, the trial court, by entertaining plaintiff’s argument, did

not unconstitutionally infringe on the board’s legislative function in violation of the

separation of powers.

       Thus, because plaintiff presented sufficient evidence to conclude that reasonable

minds could differ regarding the board’s true motivation for eliminating plaintiff’s

position, plaintiff raised a genuine issue of material fact regarding causation and

defendants were not entitled to summary disposition. We reverse the judgment of the

Court of Appeals, reinstate the trial court’s denial of defendants’ motion for summary

disposition, and reinstate the trial court’s order entering judgment in favor of plaintiff.


                                                          Michael F. Cavanagh
                                                          Robert P. Young, Jr.
                                                          Stephen J. Markman
                                                          Mary Beth Kelly



      ZAHRA, J., took no part in the decision of this case because he was on the Court of
Appeals panel that issued the October 15, 2009, opinion.

       MCCORMACK, J., took no part in the decision of this case.




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