                            STATE OF MICHIGAN

                            COURT OF APPEALS



MARC MCCRUMB,                                                        UNPUBLISHED
                                                                     August 8, 2017
               Plaintiff-Appellee,

v                                                                    No. 333357
                                                                     Ingham Circuit Court
JAMIE MCALOON-LAMPMAN and ANNE                                       LC No. 13-001298-CL
BURNS,

               Defendant-Appellants,
and

INGHAM COUNTY BOARD
OF COMMISSIONERS,

               Defendant.



Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

       In this action involving the alleged wrongful termination of plaintiff Marc McCrumb’s
employment, defendants Jamie McAloon-Lampman and Anne Burns appeal as of right an order
denying, in part, their motion for summary disposition.1 We reverse.

       This case arose out of the termination of plaintiff’s employment with Ingham County
Animal Control. Plaintiff was hired as a probationary, temporary, at-will animal control officer.
McAloon-Lampman served as the director and Burns served as the deputy director of Ingham
County Animal Control. Several months after he was hired, plaintiff became a permanent, full-
time animal control officer, but was still considered a probationary employee. Almost one year


1
  We reject plaintiff’s jurisdictional challenge. Firstly, the Court has already decided the issue of
jurisdiction. McCrumb v McAloon-Lampman, unpublished order of the Court of Appeals, issued
July 14, 2016 (Docket No. 333357). Secondly, we note that the present appeal is taken from the
May 20, 2016, order. Given that the May 20, 2016, order necessarily denied the claim of
governmental immunity by governmental parties, it was a final order under MCR 7.202(6)(a)(v).


                                                -1-
later, plaintiff was terminated from his position, six weeks before his extended probationary
period was set to expire.

        Following his termination, plaintiff filed a complaint in which he asserted that he was
retaliated against and terminated from his position because he refused to violate the law by
following three unlawful orders. Specifically, plaintiff alleged (1) that he refused to comply with
an order from Burns to threaten an owner with the seizure of her three unlicensed dogs if the
owner refused to turn over numerous unlicensed cats, (2) that he refused to comply with an order
from McAloon-Lampman to lie in an incident report involving an owner’s violent treatment of
his dog, and (3) that he refused to comply with an order from McAloon-Lampman to enter a
fenced backyard to seize four dogs, two of which were healthy, unharmed, and licensed.
Plaintiff alleged that following his refusal to comply with these orders, “he began receiving
write-ups and threats of having discipline imposed upon him,” and was eventually terminated.
Based on these allegations, plaintiff made a claim of wrongful termination in violation of public
policy. See, e.g., Trombetta v Detroit, Toledo & Ironton R Co, 81 Mich App 489, 495; 265
NW2d 385 (1978).

        Defendants denied that McAloon-Lampman had ordered plaintiff to lie in an incident
report and denied that plaintiff had been terminated for his refusal to follow the other orders.
Instead, defendants alleged that plaintiff had been fired for “legitimate, non-retaliatory reasons”
related to his substandard work performance. Defendants also claimed that plaintiff’s claims
were barred by governmental immunity. Following the close of discovery, defendants filed a
second2 motion for summary disposition. Defendants asserted that plaintiff failed to present any
evidence that the three alleged orders were unlawful, that a causal connection existed between
plaintiff’s alleged refusal to violate those orders and his termination, or that defendants’ stated
reasons for plaintiff’s termination were pretextual. Defendants also asserted that the decision to
terminate plaintiff for poor work performance was within the scope of their authority and that,
therefore, they were entitled to governmental immunity.

        The trial court determined that the order regarding the unlicensed cats and dogs was not
unlawful and granted defendants’ motion for summary disposition with regard to this incident.
However, the court found that the order to seize the two licensed healthy dogs in the fenced
backyard constituted an unlawful order because the seizure would have violated the Fourth
Amendment of the United States Constitution. Further, because the court was presented with
conflicting accounts regarding why plaintiff was ordered to rewrite the incident report, it
determined that a factual question existed regarding whether the order to rewrite the report was
unlawful. The court also found that a factual question existed regarding whether plaintiff was
terminated in retaliation for his refusal to follow these latter two orders and denied defendants
summary disposition with respect to them.

      Defendants argue that even if plaintiff was ordered to violate the law during his
employment, the trial court still erred in denying their motion for summary disposition, because



2
    See note 6, infra.


                                                -2-
plaintiff did not establish a prima facie case in that he failed to establish a causal connection
between his refusal to violate the law and his termination. We agree.3

        This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Loweke v Ann Arbor Ceiling & Partition Co LLC, 489 Mich 157, 162; 809 NW2d 553 (2011).
Summary disposition may be granted when, “[e]xcept as to the amount of damages, there is no
genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10). To determine whether the movant was
entitled to judgment as a matter of law, this Court reviews the record in the same manner as the
trial court. See, e.g., Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776
(1998). Review is limited to the evidence that had been presented to the trial court at the time
the motion was decided. Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 475-
476; 776 NW2d 398 (2009). A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds could differ. Debano-Griffin v Lake County, 493 Mich 167, 175; 828 NW2d 634 (2013).

         Defendants argue that plaintiff did not demonstrate that his alleged refusal to violate the
law was connected to his termination. In order to establish causation in a retaliation4 case, a
plaintiff must present evidence that his refusal to violate the law was a significant factor leading
to his termination. See Barrett v Kirtland Community College, 245 Mich App 306, 315; 628
NW2d 63 (2001). Something more than a temporal connection is necessary to show causation,
West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003), but it is not necessary to
show that the refusal to violate the law was the sole reason for the termination, see Silberstein v
Pro-Golf of America, Inc, 278 Mich App at 446, 457; 750 NW2d 615 (2008).

        Defendants presented substantial evidence that plaintiff was disciplined for a variety of
work performance issues other than a refusal to follow the orders in question and that he had his
probationary period extended because his work performance issues failed to improve.
Defendants offered plaintiff’s deposition testimony in which he admitted that he knew that
defendants were unhappy with his work performance for reasons other than his refusal to follow
the orders and that defendants did not, in the course of their discipline and training, refer to
certain allegedly unlawful orders or even raise the fact that plaintiff had spoken with a prosecutor
for advice about the “unlicensed cats and dogs” incident.5 While plaintiff presented evidence
that defendants initiated the discipline for plaintiff’s work performance issues only after his
refusal to follow the first order (which, incidentally, was the clearly lawful “unlicensed cats and
dogs” order), something more than a mere temporal connection is necessary to show causation.


3
    We find it unnecessary to delve into the lawfulness of the orders at issue.
4
  Although this is not a “retaliation” case in the traditional sense, it shares characteristics with
such a case and indeed, plaintiff cites to a retaliation case in his appellate brief.
5
  While the “unlicensed cats and dogs” incident is not at issue in this appeal, it is nonetheless
relevant that defendants did not take issue with plaintiff’s having gone to the prosecutor for
advice over this incident; it speaks to defendants’ state of mind in general regarding plaintiff’s
actions.


                                                   -3-
West, 469 Mich at 186. The evidence presented by defendants demonstrated that they had
legitimate non-retaliatory reasons for plaintiff’s discharge—plaintiff’s incomplete reports and
difficulties following office protocol—and plaintiff presented no evidence indicating that these
reasons were pretextual and that he was actually terminated for a refusal to violate the law.
Quite simply, plaintiff relies far too heavily on the supposed temporal connection. The trial
court improperly determined that a question of fact existed regarding causation.

       In addition, defendants were entitled to governmental immunity. 6

        “MCR 2.116(C)(7) provides that a motion for summary disposition may be raised on the
ground that a claim is barred because of immunity granted by law.” Dextrom v Wexford Co, 287
Mich App 406, 428; 789 NW2d 211 (2010). “When reviewing a motion under MCR
2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them
in favor of the plaintiff, unless other evidence contradicts them.” Id. at 428-429.

        “Governmental immunity is the public policy, derived from the traditional doctrine of
sovereign immunity, that limits imposition of tort liability on a governmental agency.”
Nawrocki v Macomb Co Rd Comm’n, 463 Mich 143, 155-156; 615 NW2d 702 (2000). “The
governmental immunity act, MCL 691.1401 et seq., generally provides immunity from tort
claims to governmental agencies engaged in a governmental function, as well as governmental
officers, agents, or employees.” Niederhouse v Palmerton, 300 Mich App 625, 631; 836 NW2d
176 (2013). The Michigan Supreme Court has provided the following framework that courts
must follow when individual government immunity is raised:

       (1) Determine whether the individual is a judge, a legislator, or the highest-
       ranking appointed executive official at any level of government who is entitled to
       absolute immunity under MCL 691.1407(5).

       (2) If the individual is a lower-ranking governmental employee or official,
       determine whether the plaintiff pleaded an intentional or a negligent tort.



6
  As noted earlier, plaintiff raises a jurisdictional challenge in his brief on appeal. He notes that
the trial court initially denied defendants’ entitlement to governmental immunity in an order
entered on July 22, 2014, following defendants’ first motion for summary disposition, and then
denied a motion for reconsideration of that decision in an October 8, 2014, order. Plaintiff
asserts that the trial court was without jurisdiction to again entertain the governmental immunity
issue during defendants’ second motion for summary disposition, and that this Court therefore
does not have jurisdiction. We find that this argument lacks merit. See, generally, Bank of Am,
NA v Fid Nat Title Ins Co, 316 Mich App 480, 521-522; 892 NW2d 467 (2016) (citations
omitted) (noting that “courts are permitted to revisit issues they previously decided, even if
presented with a motion for reconsideration that offers nothing new to the court,” and concluding
that “[a] party is permitted to file more than one motion for summary disposition . . . [and] [t]he
denial of a motion for summary disposition does not preclude such a motion on the same ground
from being granted later in the same case”).


                                                -4-
       (3) If the plaintiff pleaded a negligent tort, proceed under MCL 691.1407(2) and
       determine if the individual caused an injury or damage while acting in the course
       of employment or service or on behalf of his governmental employer and
       whether:

                                             * * *

       (4) If the plaintiff pleaded an intentional tort, determine whether the defendant
       established that he is entitled to individual governmental immunity under the Ross
       [v Consumers Power Co, 420 Mich 567; 363 NW2d 641 (1984), superseded in
       part by statute as stated in Jones v Bitner, 300 Mich App 65, 74; 832 NW2d 426
       (2013)] test by showing the following:

       (a) The acts were undertaken during the course of employment and the employee
       was acting, or reasonably believed that he was acting, within the scope of his
       authority,

       (b) the acts were undertaken in good faith, or were not undertaken with malice,
       and

       (c) the acts were discretionary, as opposed to ministerial. [Odom v Wayne Co,
       482 Mich 459, 479-480; 760 NW2d 217 (2008).]

        Defendants are lower level governmental employees and are not entitled to absolute
immunity under MCL 691.1407(5). Because plaintiff pleaded an intentional tort and because
defendants pleaded governmental immunity as an affirmative defense, defendants are entitled to
immunity if they meet the three-part Ross test outlined above. Plaintiff does not dispute that
defendants were acting within the scope of their employment or that they performed a
discretionary, as opposed to a ministerial, act in terminating him. Accordingly, the only Ross
factor at issue is whether defendants acted in good faith or without malice in terminating
plaintiff’s employment.

        “[A] governmental employee does not act in ‘good faith’ if the employee acts
maliciously or with a wanton or reckless disregard of the rights of another.” Radu v Herndon &
Herndon Investigations, Inc, 302 Mich App 363, 386; 838 NW2d 720 (2013) (quotation marks
and citations omitted). “[W]illful and wanton misconduct is made out only if the conduct alleged
shows an intent to harm or, if not that, such indifference to whether harm will result as to be the
equivalent of a willingness that it does.” Burnett v Adrian, 414 Mich 448, 455; 326 NW2d 810
(1982).

        Defendants presented substantial evidence demonstrating that they acted in good faith
with regard to plaintiff’s hiring, training, and ultimately, termination. First, defendants offered
evidence demonstrating that plaintiff struggled with following office protocol in report writing
and communication, and that defendants offered him counseling and training in an effort to
notify him of the issues and improve the problem areas. As a probationary employee, plaintiff
could have been fired at the outset based on any indication that he could not perform the job, but
instead, defendants continued with training defendant and even extended his probationary term
in an effort to get him to improve his work performance. Further, with regard to the decision to
                                                -5-
terminate plaintiff’s employment, defendants offered their affidavits in which they asserted that
plaintiff had been terminated only as a result of his failure to improve his work performance.

         Plaintiff asserted his belief that because the discipline began only after his refusal to
follow the first order, he must have been disciplined and then terminated in retaliation for his
refusal to follow the allegedly unlawful orders. However, plaintiff failed to offer any evidence
of bad faith or malice on the part of defendants. While wrongfully terminating an employee in
retaliation for his refusal to violate the law cannot be done in good faith or without malice,
plaintiff failed to present evidence establishing a causal connection between his refusal to follow
allegedly unlawful orders and his termination. Thus, it was erroneous for the trial court not to
find defendants immune from liability.

        Reversed and remanded for entry of judgment in favor of defendants. We do not retain
jurisdiction.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Patrick M. Meter
                                                            /s/ Michael J. Kelly




                                                -6-
