                          STATE OF MICHIGAN

                           COURT OF APPEALS



SGT. BRIAN SCHAEFER,                                               UNPUBLISHED
                                                                   November 10, 2016
              Plaintiff-Appellant,

v                                                                  No. 328054
                                                                   Wayne Circuit Court
PLYMOUTH TOWNSHIP and THOMAS J.                                    LC No. 14-001889-NZ
TIDERINGTON,

              Defendants-Appellees.


Before: TALBOT, C.J., and K. F. KELLY and MURRAY, JJ.

PER CURIAM.

        Plaintiff appeals as of right an order granting defendants summary disposition in
plaintiff’s claim brought under Michigan’s Whistleblower’s Protection Act (WPA), MCL 15.361
et seq. Finding no error warranting reversal, we affirm.

                                       I. BASIC FACTS

       Plaintiff Sergeant Brian Schaefer (Schaefer) sued defendants, Plymouth Township (the
township) and Chief of Police Thomas J. Tiderington (Tiderington), alleging that he was
wrongfully terminated as a result of answers that he gave during a mandatory interview with
township attorneys Laura Amtsbuechler and Chris Johnson in connection with a lawsuit brought
by another officer, Brittany DeFrain, against the township (the DeFrain lawsuit). DeFrain had
sued the township for sexual discrimination after the township extended her probationary work
period beyond the traditional one-year period as a result of a relationship she had with a fellow
married officer, Scott Linton.

        Schaefer was a sergeant who supervised Linton as well as Officer Stephen Albrecht and
who also supervised DeFrain during her field training. In his August 2013 interview with
township attorneys, Schaefer denied knowing that DeFrain and Linton were in a relationship.
Schaefer also told the attorneys that, in his opinion, Tiderington should not have extended
DeFrain’s probationary period because such an extension was simply unheard of. Schaefer
believed that DeFrain should have either been hired or fired. Shortly after this meeting,
Tiderington and his administrative lieutenant, Jon Brothers, began an internal investigation of
Linton and Albrecht. Mobile data messaging had revealed that both Linton and Albrecht
routinely slept on duty and that Linton was covering up his affair with DeFrain. There was one
message from Linton to DeFrain indicating that “Schaef’s at home, now we can meet to kiss.”
                                               -1-
Tiderington was concerned that Schaefer was at home at that time because it indicated a
“manpower” issue, so he asked Brothers to investigate why Schaefer was home when he should
have been on duty. Brothers determined that there was no explanation for Schaefer being home.
Additionally, Schaefer had been turning off his patrol car’s computer system, so, unlike his
fellow officers, there was no accounting for Schaefer’s whereabouts. A GPS device was placed
on the shared patrol car and revealed that Schaefer routinely went home for extended periods of
time while he was on duty. Tiderington charged Schaefer with a number of policy and rules
violations and Schaefer was fired in December 2013. He filed a union grievance but the
arbitrator determined that there was just cause for firing Schaefer and the dismissal was upheld.

        Schaefer filed his complaint on February 14, 2014, alleging that he was terminated
because of his truthful answers to mandated participation in the DeFrain investigation wherein
Schaefer criticized Tiderington’s handling of DeFrain’s probationary status, denied knowledge
of a sexual relationship between DeFrain and Linton, and suggested that married officers who
were friends of Tiderington’s were involved in sexual relationships with female employees.

        Defendants moved for summary disposition pursuant to MCR 2.116(C)(10). They
argued that Schaefer was not involved in a “protected activity” because there was no evidence
that Schaefer ever participated in a court action; his meeting with township attorneys was not
conducted by a public body. Additionally, defendants argued that there was no causal
connection between Schaefer’s alleged protected activity and his termination. Schaefer could
point to no evidence to factually demonstrate a causal link between his interview with the
attorneys and his termination; instead, Schaefer offered mere speculation. Defendants pointed
out that there was no evidence that Tiderington even knew what Schaefer said in the interview.
Defendants maintained that Schaefer could not show that the proffered reason for his termination
was mere pretext when Schaefer, in fact, acknowledged his wrongdoing and only took issue with
the severity of his discipline.

        The trial court agreed that Schaefer failed to bring forth any evidence that defendants’
proffered reasons for firing Schaefer were pretextual and that retaliation was a motivating factor.
The trial court entered an order in defendants’ favor on June 3, 2015. Schaefer now appeals as of
right.

                                 II. STANDARD OF REVIEW

       “We review de novo motions for summary disposition brought under MCR
2.116(C)(10).” Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Under that rule,
summary disposition is appropriate 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).

       A motion for summary disposition under MCR 2.116(C)(10) tests the factual
       sufficiency of the complaint. The moving party must specifically identify the
       matters that have no disputed factual issues, and it has the initial burden of
       supporting its position by affidavits, depositions, admissions, or other
       documentary evidence. The party opposing the motion then has the burden of
       showing by evidentiary materials that a genuine issue of disputed material fact

                                                -2-
       exists. The existence of a disputed fact must be established by substantively
       admissible evidence, although the evidence need not be in admissible form. 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. [Bronson Methodist Hosp v Auto-Owners Ins Co,
       295 Mich App 431, 440–441; 814 NW2d 670 (2012) (internal citations omitted).]

“Because a motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint, the
circuit court must consider the affidavits, pleadings, depositions, admissions, and other evidence
submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the
motion.” Joseph v Auto Club Ins Ass'n, 491 Mich 200, 206; 815 NW2d 412 (2012).

                                         III. ANALYSIS

       Schaefer argues that the trial court erred in granting defendants summary disposition. We
disagree and conclude that the trial court properly granted defendants summary disposition
where Schaefer failed to raise a genuine issue of material fact regarding the causal connection
between his protected activity and his firing.

       MCL 15.362 provides:

               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.

Here, Schaefer claims that he was a “Type 2” whistleblower. Our Court has explained:

       The plain language of the statute provides protection for two types of
       “whistleblowers”: (1) those who report, or are about to report, violations of law,
       regulation, or rule to a public body, and (2) those who are requested by a public
       body to participate in an investigation held by that public body or in a court
       action. On the basis of the plain language of the WPA, we interpret a type 1
       whistleblower to be one who, on his own initiative, takes it upon himself to
       communicate the employer's wrongful conduct to a public body in an attempt to
       bring the, as yet hidden, violation to light to remedy the situation or harm done by
       the violation. In other words, we see type 1 whistleblowers as initiators, as
       opposed to type 2 whistleblowers who participate in a previously initiated
       investigation or hearing at the behest of a public body. If a plaintiff falls under
       either category, then that plaintiff is engaged in a “protected activity” for purposes
       of presenting a prima facie case. [Henry v City of Detroit, 234 Mich App 405,
       409–410; 594 NW2d 107 (1999).]

                                                -3-
       Our Supreme Court has identified the elements necessary for a prima facie case under the
WPA:

              Drawing from the statutory language, this Court has identified three
       elements that a plaintiff must demonstrate to make out a prima facie case that the
       defendant employer has violated the WPA:

       (1) The employee was engaged in one of the protected activities listed in the
       provision.

       (2) The employee was discharged, threatened, or otherwise discriminated against
       regarding his or her compensation, terms, conditions, location, or privileges of
       employment.

       (3) A causal connection exists between the employee's protected activity and the
       employer's act of discharging, threatening, or otherwise discriminating against the
       employee. [Wurtz v Beecher Metro Dist, 495 Mich 242, 250–252; 848 NW2d
       121, reh den 495 Mich 1010 (2014) (internal footnotes omitted).]

Although defendants argued that Schaefer was not engaged in a protected activity when he met
with township attorneys, we decline to address whether Schaefer was, in fact, engaged in a
protected activity, where the trial court did not directly rule on the issue. Given the fact that he
was fired, Schaefer obviously satisfied the second element of a prima facie WPA claim. At
issue, then, is whether there was a genuine issue of material fact as to whether a causal
connection existed between Schaefer’s protected activity and his termination.

         “Because whistleblower claims are analogous to other anti-retaliation employment claims
brought under employment discrimination statutes prohibiting various discriminatory animuses,
they should receive treatment under the standards of proof of those analogous claims,” including
the burden-shifting framework set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S
Ct 1817; 36 L Ed 2d 668 (1973). Debano-Griffin v Lake Co, 493 Mich 167, 175–176; 828
NW2d 634 (2013) (internal quotation marks and citations omitted). Therefore, where, as here,
there is no direct evidence of retaliation, a plaintiff may rely on indirect evidence of his
employer’s motivations to show that “a causal link exists between the whistleblowing act and the
employer's adverse employment action.” Id. at 176. A plaintiff may accomplish this by
presented “proofs from which a factfinder could infer that” plaintiff was the victim of retaliation.
Id. After a plaintiff has come forward with such evidence, a presumption of retaliation arises.
Id. An employer may nevertheless 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. After an employer articulates a legitimate reason for the action, the burden shifts
back to the plaintiff to establish that the proffered reason was merely a pretext for unlawful
retaliation. Id.

       “A plaintiff can prove pretext either directly by persuading the court that a retaliatory
reason more likely motivated the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.” Taylor v Modern Engineering, Inc, 252 Mich

                                                -4-
App 655, 660; 653 NW2d 625 (2002). However, “[s]ummary disposition for the defendant is
appropriate when a plaintiff cannot factually demonstrate a causal link between the protected
activity and the adverse employment action” and a plaintiff “must show something more than
merely a coincidence in time between protected activity and adverse employment action.” West
v Gen Motors Corp, 469 Mich 177, 184, 186; 665 NW2d 468 (2003).

        Schaefer points to the temporal relationship between his meeting with township attorneys
in August 2013, the staff investigation and meeting in September 2013, and his firing in
December 2013. The meeting with the township attorneys no doubt set in motion the events that
ultimately led to Schaefer’s termination, but not in the way Schaefer would have the trial court
believe. Schaefer implies that Tiderington engaged in a surreptitious witch hunt after learning
about Schaefer’s statements but the record does not support such a conclusion; instead, it is clear
that the focus of the internal investigation was Linton and Albrecht, with Schaefer factoring in in
a minor way.

        Even viewing the evidence in a light most favorable to Schaefer, Schaefer has failed to
present sufficient evidence to create a genuine issue of material fact regarding a causal
connection between the protected activity and his termination. Defendants proffered legitimate
business reasons for firing Schaefer based on his flagrant violation of rules and policies and his
inability to properly supervise Linton and Albrecht, which allowed them to likewise disregard
and neglect their duties. Schaefer readily admitted that he and his wife were having problems
after the birth of their second child and that he felt compelled to go home while on duty to help
her. Schaefer’s home was beyond the bounds set for leaving the township. Additionally, even if
Schaefer’s testimony is believed that he did not purposefully turn off the patrol car’s computer
system to hide his whereabouts, the fact remained that Schaefer was the only sergeant whose
whereabouts could not be determined. As a result, a GPS device was placed on the patrol car.
Contrary to Schaefer’s repeated reference to the car as “his,” the evidence clearly reveals that
this was a patrol car shared by all the sergeants. Once the GPS device was placed on the patrol
car, the department learned that there were at least two incidents in which Schaefer was home for
extended periods of time while on duty and that he responded to at least two calls from home.
On one such occasion, Schaefer drove over 90 miles per hour and did not activate his overhead
lights until he was back in the township. Even if Schaefer is believed and this was merely a
coincidence, the fact remains that the department was justified in concluding that Schaefer had a
habit and pattern of spending large blocks of time at home and actively undertook to hide his
location from the department. Obviously, Schaefer’s focus was not on his professional
obligations as a supervising sergeant and his lack of attentiveness allowed Linton and Albrecht to
run amok. Schaefer also admitted to occasions in which dispatch was unable to contact him
because he was engaged in personal errands while on duty. In addition, Schaefer admitted that
he routinely stopped by his business in direct contravention of Tiderington’s orders. Other
flagrant policy violations included Schaefer or other officers driving Schaefer’s drunken friends
home.

        Because there was a legitimate business reason for Schaefer’s firing, it was incumbent
upon Schaefer to provide sufficient evidence to create a genuine issue of material fact as to why
those reasons were pretextual. Schaefer failed to do so because he attempted to create evidence
by inference, meaning Schaefer asked the trial court to simply determine that neither
Amtsbuechler nor Tiderington were credible. It is true that “[c]ircumstantial evidence can be

                                                -5-
evaluated and utilized in regard to determining whether a genuine issue of material fact exists for
purposes of summary disposition,” Bergen v Baker, 264 Mich App 376, 387; 691 NW2d 770
(2004), but Schaefer’s “evidence” falls far short of creating an issue of fact.

        Amtsbuechler explained that her interview with Schaefer was an attempt to understand
why DeFrain had resigned as well as determine the extent of Schaefer’s knowledge regarding the
relationship between Linton and DeFrain. Much of the information she received was
information she already knew. Amtsbuechler did not know, nor did she care, what Schaefer’s
personal opinions were about whether DeFrain’s extension was appropriate. She only wanted to
know about DeFrain’s performance. Something about Schaefer’s demeanor led Amtsbuechler to
believe that he was not telling the truth when he denied knowing that Linton and DeFrain were in
a relationship. When she spoke to Tiderington after the interviews, Amtsbuechler told
Tiderington that she did not believe Schaefer was being totally honest. Amtsbuechler testified
that Schaefer’s honesty, or lack thereof, was “the only thing that” she talked to Tiderington
about.

       On appeal, as in the trial court, Schaefer argues that Amtsbuechler’s testimony was not
worthy of belief. However, Schaefer does not explain how Amtsbuechler’s testimony was “self-
serving” or what Amtsbuechler would gain in lying about what she told Tiderington. Instead,
Schaefer simply believes Amtsbuechler was lying and asked the trial court to draw the same
conclusion.

         Schaefer similarly attacked Tiderington’s credibility.     Tiderington testified that
Amtsbuechler did not tell him that Schaefer told Amtsbuechler that it violated the field training
program protocol for Tiderington to extend DeFrain’s probationary period. Tiderington testified
that he only learned that Schaefer believed the statements made to Amtsbuechler were related to
the firing when Tiderington saw Schaefer’s lawsuit.

               Q. Okay. did Ms. – Laura – did she tell you that Schaefer had been
       critical of you for not conferring with him regarding extending Defrain’s
       probationary period?

               A. Never had that conversation with her, ever.

              Q. Okay. Did Laura – and when I say Laura let me include Mr. Johnson
       also. He didn’t tell you anything like that?

               A. He did not.

                                               ***

              Q. Isn’t it true that you fired Schaefer because you didn’t like what it is he
       said during the meeting with the attorneys?

               A. That’s the most absurd thing that I’ve ever heard. . . .And to clarify
       that, that never happened.

                                                      ***

                                                -6-
              Q. Isn’t it true that you investigated Schaefer to the extent that you did
       because of what he told the attorneys in that meeting?

              A. That’s absolutely false. I assigned his friend to investigate him, a man
       of unquestioned integrity. He conducted the staff inspection. I didn’t conduct it.
       There’s no question that whatever Jon Brothers wrote down was factual.

        Schaefer never came forward with a shred of evidence that his comments to the township
attorneys regarding the extension of DeFrain’s probation were communicated to Tiderington.
Critically important, Schaefer had no direct knowledge of what the attorneys communicated to
Tiderington.

              Q. And do you have any information from any other source as to what the
       attorneys Johnson and Amtsbuechler, told the chief about your conversation?

               A. I have no direct information.

               Q. Either written or verbal?

               A. Correct.

               Q. So, other than what you – your speculation or what you think, you
       have no direct knowledge or information about what they communicated to the
       chief, “they” meaning the attorneys?

               A. Other than my strong beliefs on what happened.

               Q. So, there’s no factual basis for that other than your strong beliefs; is
       that correct?

               A. I believe there’s a factual basis, yes, there’s –

               Q. On a factual basis as to what somebody told you or what you read?

               A. Yes. No direct verbal or written.

Such “speculation” and “conjecture” were insufficient to raise a genuine issue of fact. Skinner v
Square D Co, 445 Mich 153, 172-173; 516 NW2d 475 (1994); Ghaffari v Turner Const Co, 268
Mich App 460, 465; 708 NW2d 448 (2005).

        Contrary to Schaefer’s assertions, the trial court did not weigh the credibility of the
witnesses but simply considered the absence of contrary evidence. It is certainly true that
witness credibility is a question of fact for the jury to decide, but there was no genuine issue of
fact remaining because there were not two competing versions of what occurred. Instead, both
Amtsbuechler and Tiderington denied that Schaefer’s comments about DeFrain’s extension were
communicated to Tiderington. In response, Schaefer came forth with no contrary evidence other
than his “strong beliefs.” This was not a situation where summary disposition was inappropriate
because Tiderington’s subjective motivation was at play, see Pemberton v Dharmani, 207 Mich

                                                  -7-
App 522, 529 n 1; 525 NW2d 497 (1994) (“summary disposition is inappropriate where
questions of motive, intention, or other conditions of the mind are material issues”), nor is this a
situation that involved “crucial credibility determinations,” White v Taylor Distributing Co, Inc,
275 Mich App 615, 631; 739 NW2d 132 (2007), aff’d 482 Mich 136 (2008). This is a situation
where there was no evidence that the information was ever conveyed and, as such, Tiderington
could not have been motivated to retaliate against Schaefer. When Schaefer’s “speculative
testimony is disregarded, the only testimony that remains is” that of Tiderington and
Amtsbuechler. Ghaffari, 268 Mich App at 465.

        While certain circumstances might present issues of fact or credibility that preclude
summary disposition even in the absence of specifically refuting documentary evidence, White,
275 Mich App at 626, 628, this is not such a situation, especially where Schaefer has repeatedly
admitted to his own wrong-doing. He repeatedly conceded that his behavior formed the basis for
some sort of discipline. Schaefer’s allegation that there was pretext thus rings hollow.
Especially in light of Schaefer’s counsel’s statement at Schaefer’s deposition when the attorneys
were fighting about the length of the deposition: “You know, this man has already admitted to
every one of these accusations. He admitted it before there was any proceeding against him.
Then he went to arbitration and he admitted them again. And now you’ve got him to admit it a
third time, but that isn’t good enough for you.” (Pl Dep, p 504.)

       Contrary to Schaefer’s assertions, the trial court did not apply the doctrine of collateral
estoppel when it concluded that Schaefer failed to demonstrate an issue of material fact when it
came to causation. In a reply brief, defendants had argued that Schaefer could not show the
reasons for his termination were insufficient because “the decision was independently reached by
Richard Reaume [the township supervisor], along with an independent arbitrator. In a footnote,
defendants cited Cole v West Side Auto Employees Fed Credit Union, 229 Mich App 639; 583
NW2d 226 (1998) for the idea that the arbitrator’s decision had collateral estoppel effect.



               Collateral estoppel bars relitigation of an issue in a new action arising
       between the same parties or their privies when the earlier proceeding resulted in a
       valid final judgment and the issue in question was actually and necessarily
       determined in that prior proceeding. The doctrine bars relitigation of issues when
       the parties had a full and fair opportunity to litigate those issues in an earlier
       action. A decision is final when all appeals have been exhausted or when the time
       available for an appeal has passed. [Leahy v Orion Twp, 269 Mich App 527, 530;
       711 NW2d 438 (2006) (internal citations omitted).]

      At the motion hearing, the trial court made a couple of comments that Schaefer
misconstrues, including:

   •   “We’re rehashing a little bit of the disciplinary proceeding here, and I’m not supposed
       [to] necessarily be revisiting that. I’m supposed to be assigned whether or not you’ve
       submitted sufficient evidence, Mike, under the WPA.”



                                                -8-
   •   “As it relates to the causal connections argument, it appears as though the plaintiff is
       attempting to relitigate that to which he’s already admitted in the disciplinary proceeding
       which was independent.”

   •   “The fact that the chief decided to enforce those violations in a department that appears to
       have been running rampant, again we can’t attack the business decision of the arbitrator.
       The arbitrator dismissed on nonpretextual grounds.”

However, it is clear from the entire transcript that the trial court did not believe that it was bound
in any way by what occurred at arbitration or the arbitrator’s conclusions. Instead, the trial court
pointed to the fact that Schaefer admitted to much of the wrong-doing and that the arbitrator
declined to upset the decision to terminate Schaefer where just cause existed for the termination.
The trial court pointed to the arbitration decision as support for its conclusion that defendants
had set forth legitimate non-retaliatory reasons for firing Schaefer and that Schaefer had failed to
meet his burden of demonstrating that the proffered reasons were pretextual. The trial court
stated: “The plaintiff hasn’t met their [sic] burden to come back once that burden shifts to
establish that this was a pretext even though the plaintiff cites to the timing aspect.” The
following exchange took place:

                 MR. STEFANI [plaintiff’s attorney]: So you’re saying –

                 THE COURT: What I’m saying –

               MR. STEFANI: -- that we don’t have any – the arbitration had nothing to
       do with the Whistleblower case. It wasn’t mentioned in the arbitration because
       the arbitration was arbitrating a labor contract.

                 THE COURT: I understand.

                 MR. STEFANI: And I’m not here to argue. I just want it clear on the
       record.

               THE COURT: Mr. Stefani, once the defendants have substantiated that
       there were legitimate reasons for the discharge, it’s incumbent upon the plaintiff
       to respond to that burden shifting. The Court finds for those reasons stated on the
       record that the plaintiff has not, and the motion will be granted.

Moreover, the fact that Schaefer never raised his retaliation claim during the arbitration was
further support that no such claim existed. Although Schaefer explained that he was simply too
much of a stand-up guy to point fingers at other officers’ behavior, it stands to reason that he
would have raised a retaliation claim when his job was on the line.

        Finally, there is no evidence that Schaefer received a harsher punishment than any other
similarly situated officer. Both Linton and Albrecht resigned in lieu of being fired for their
behavior while Schaefer was supposed to be supervising them. It is disingenuous for Schaefer to
claim that he was somehow targeted when those other officers suffered similar fates. And as for
claims of other officers’ misconduct, even if what Schaefer and Albrecht said were true, the
record is bereft of Tiderington having any knowledge of other officers’ wrong-doing.

                                                 -9-
       The trial court properly granted defendants summary disposition where Schaefer was
unable to establish a prima facie WPA claim. Specifically, where defendants proffered
legitimate, non-discriminatory reasons for firing Schaefer, Schaefer failed in his burden of
bringing forth evidence that those reasons were merely pretextual.

       Affirmed.

                                                        /s/ Michael J. Talbot
                                                        /s/ Kirsten Frank Kelly
                                                        /s/ Christopher M. Murray




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