                          STATE OF MICHIGAN

                           COURT OF APPEALS



MARSHA GARCIA,                                                     UNPUBLISHED
                                                                   October 15, 2015
               Plaintiff-Appellee,

v                                                                  No. 322185
                                                                   Tuscola Circuit Court
ROSE LASKOWSKI, CHRISTOPHER                                        LC No. 13-027507-NO
KWASNESKI, SAMANTHA FACKLER,
EILEEN UNRUH, and DAVID UNDERWOOD,

               Defendants-Appellants.


MARSHA GARCIA,

               Plaintiff-Appellee,

v                                                                  No. 322189
                                                                   Tuscola Circuit Court
LAURA WEILER,                                                      LC No. 14-028117-NO

               Defendant-Appellant.


Before: BORRELLO, P.J., and JANSEN and OWENS, JJ.

PER CURIAM.

       In these consolidated cases, defendants appeal as of right the circuit court’s May 21, 2014
order denying their motion for summary disposition under MCR 2.116(C)(7) (governmental
immunity).1 For the reasons set forth in this opinion, we affirm.

                                I. FACTUAL BACKGROUND




1
 The trial court also denied defendant’s motion under MCR 2.116(C)(10) (no genuine issue of
material fact). However, only governmental immunity is at issue in this appeal.


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        In January of 2011, plaintiff became employed at the State of Michigan Department of
Health and Human Services (DHHS) Caro Center, a state hospital for adults with chronic and
severe mental illness, in a position titled RN Manager 1 or RN-1. Defendants are all managerial
or supervisory employees at the Caro Center. An RN-1 is responsible for providing care to
patients and doing some supervision of lower level employees. As a provisional employee,
plaintiff received evaluations after three, six, and twelve months on the job. The evaluations
allowed supervisors to give employees scores of “unsatisfactory,” “meets expectations,” and
“high performing.” On her three and six month evaluations, plaintiff received a “meets
expectations” rating for both the overall score and for various sub-categories. The evaluating
supervisor testified that plaintiff’s performance was similar to other new nurses, that she never
expressed any concern with plaintiff, and that while she has given “high performing” scores to
new nurses, a “meets expectations” is the more common score given. However, plaintiff
received numerous e-mails from defendant Eileen Unruh, a supervisor, regarding plaintiff’s
documentation errors in various reports and charts. Nonetheless, a co-worker attested that such
e-mails are common in the facility, are meant to provide guidance not criticism, and that the
nurses generally refer to such e-mails as “nasty grams” due to their frequency and nature.

        At a deposition, plaintiff testified that on August 13, 2011 she was helping a patient and
tried to prevent the patient from falling. Plaintiff stated that she went down with the patient and
was injured, requiring her to go to the hospital in Saginaw. Plaintiff testified that she returned to
work on limited duty on August 25, 2011. Plaintiff also stated that when she returned to work,
Human Resources gave her a list of the tasks she could and could not perform. She then filed a
worker’s compensation claim and gave the paperwork for the claim to Human Resources. The
Caro Center’s director of human resources, defendant Christopher Kwasneski, testified that all
workers compensation claims would go across his desk for review. Plaintiff claimed that upon
returning to limited duty, defendant Samantha Fackler, a supervisor, told plaintiff that she would
not pay plaintiff to answer telephones. Another supervisor testified that plaintiff made
documentation errors while on limited duty.

        Plaintiff returned to active duty on November 16, 2011, at which point she was assigned
a “preceptor,” defendant Laura Weiler. Testimony varied regarding what exactly a “preceptor”
was and specifically what Weiler’s role entailed. Plaintiff claimed that her role was to assist
plaintiff. The Caro Center’s director, defendant Rose Laskowski, testified that the preceptor’s
role was also to evaluate plaintiff. Plaintiff claimed that Weiler submitted derogatory
evaluations about her work without speaking to her about the concerns first. Fackler also spoke
with plaintiff after plaintiff was late for work on several occasions and documented this
conversation. Plaintiff also received e-mails from Unruh similar to the ones she received before
her injury.

       Plaintiff was summoned to a disciplinary conference on December 15, 2011 with Fackler
and Kwasneski. She was given her 12-month evaluation and was told that she was being
terminated. The evaluation was completed by Fackler and gave plaintiff an overall rating of
“unsatisfactory.” Additionally, most all of the sub-categories contained “unsatisfactory” ratings
and the evaluation was filled with numerous comments regarding deficiencies in plaintiff’s work,
most all of which were related to documentation errors. Kwasneski stated that it is not
uncommon for employees to get “meets expectations” marks at the three and six month
evaluations in order to give them a chance to get acclimated to the facility, and then get

                                                -2-
“unsatisfactory” marks at the 12-month mark due to a failure to progress. However, Laskowski
stated that she would find it unusual for an employee to be terminated after receiving “meets
expectations” marks at the three and six month evaluations. Laskowski also stated that no
disciplinary action was ever taken against plaintiff prior to her being terminated.

        Plaintiff commenced this lawsuit alleging that she was wrongfully terminated from her
employment in retaliation for filing a claim under the Workers Disability Compensation Act,
(WDCA) MCL 418.101 et seq.2 Defendants ultimately moved for summary disposition arguing,
in part, that plaintiff’s claim was barred by governmental immunity. The trial court denied
defendants’ motion, finding that there was an issue of fact regarding whether defendants acted in
good faith, a necessary element for qualified governmental immunity to apply. The trial court
specifically cited evidence of the timing of the termination, the lack of formal discipline before
the termination, and comments made by Fackler that she would not pay plaintiff for answering
telephones. The court entered a written order on May 21, 2014, denying defendants’ motions in
both cases and defendants appeal as of right.3

                                 II. STANDARD OF REVIEW

        We review a trial court’s ruling on a motion for summary disposition de novo. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition is proper under
MCR 2.116(C)(7) where a party enjoys immunity under the law. “In determining whether
summary disposition under MCR 2.116(C)(7) is appropriate, a court considers all documentary
evidence submitted by the parties, accepting as true the contents of the complaint unless
affidavits or other appropriate documents specifically contradict them.” Blue Harvest, Inc v
Dep’t of Trans, 288 Mich App 267, 271; 792 NW2d 798 (2010). “If the facts are not in dispute
and reasonable minds could not differ concerning the legal effect of those facts, whether a claim
is barred by immunity is a question for the court to decide as a matter of law.” Id. (quotation
marks and citations omitted).

                                        III. ANALYSIS

                   i. RETALIATORY DISCHARGE UNDER THE WDCA




2
  Laura Weiler was listed as a defendant in the initial complaint and summons, but she was not
served and the summons expired resulting in the case against her being dismissed without
prejudice. Plaintiff then filed a separate complaint against Weiler, and a stipulated order was
entered consolidating both causes of action in the trial court. Both actions concern the same set
of operative facts and allegations.
3
  Defendants filed separate claims of appeals in both lower court dockets and this Court
consolidated the appeals. Garcia v Laskowski, unpublished order of the Court of Appeals, June
26, 2014 (Docket No. 322185); Garcia v Weiler, unpublished order of the Court of Appeals,
entered June 26, 2014 (Docket No. 322189).


                                               -3-
        The primary purpose of the WDCA is to “promptly deliver benefits to employees injured
in the scope of their employment.” Dunbar v Mental Health Dep’t, 197 Mich App 1, 6, 495
NW2d 152 (1992). “Initially, the Act did not contain a retaliatory-discharge cause of action . . .
[but] [i]n 1981 PA 200, the Legislature codified a cause of action for retaliatory discharge by
amending the WDCA and adding MCL 418.301(11), which was later reclassified as MCL
418.301(13).” Cuddington v United Health Services, Inc, 298 Mich App 264, 272; 826 NW2d
519 (2012) (quotation marks and citations omitted). MCL 418.301(13) provides as follows:

              A person shall not discharge an employee or in any manner discriminate
       against an employee because the employee filed a complaint or instituted or
       caused to be instituted a proceeding under this act or because of the exercise by
       the employee on behalf of himself or herself or others of a right afforded by this
       act.

       “A cause of action seeking damages from an employer who violates the worker’s
compensation act . . . sounds in tort. . . .” Phillips v Butterball Farms Co, 448 Mich 239, 248-
249; 531 NW2d 144 (1995).

                              ii. GOVERNMENTAL IMMUNITY

       For lower-level governmental employees, officials and agents such as the individuals
named as defendants in this suit,4 the test set forth in Ross v Consumers Power Co, 420 Mich
467; 363 NW2d 641 (1984), governs whether the employee has qualified immunity under the
Government Tort Liability Act (GTLA), MCL 691.1401 et seq. Odom v Wayne County, 482
Mich 459, 470; 760 NW2d 217 (2008). Under the Ross test, a governmental employee is entitled
to immunity where he or she has shown 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, 482
       Mich at 480, citing Ross, 420 Mich at 467.]

                                      iii. APPLICATION

      The only Ross factor at issue in this appeal is whether there was an issue of fact regarding
whether defendants acted in good faith or without malice in terminating plaintiff. A lack of good


4
 None of the named defendants argue that they are a “highest appointive executive official” of a
governmental entity entitled to absolute immunity under MCL 691.1407(5) and they do not
dispute that Ross governs in this case.


                                               -4-
faith exists when a government employee acts with “malicious intent.” Veldman v Grand
Rapids, 275 Mich 100, 113; 265 NW 790 (1936). A government employee does not act in good
faith “when the governmental employee acts maliciously or with a wanton or reckless disregard
of the rights of another.” Odom, 482 Mich at 474 (emphasis in original). “[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).

        In this case, whether defendants were entitled to governmental immunity turns on
whether there was a genuine issue of material fact to support plaintiff’s underlying retaliatory
discharge claim. In other words, because wrongfully terminating an employee in retaliation for
exercising her rights under the WDCA cannot be done in good faith or without malice, if there is
an issue of fact regarding the retaliation claim, there is also an issue of fact regarding whether
defendants are entitled to governmental immunity under the Ross factors.

       To establish a prima facie WDCA retaliation suit, plaintiff was required to present
evidence that: (1) she asserted a right under the WDCA—i.e. in this case, the right to claim
worker’s compensation, (2) that defendants knew that plaintiff asserted a protected right, (3) that
defendants took an employment action adverse to plaintiff, and (4) that the adverse employment
action and plaintiff’s assertion or exercise of a right afforded under the WDCA were causally
connected. Cuddington, 298 Mich App at 275.

        With respect to the last element, causation, a plaintiff may either present direct or
circumstantial evidence in support of her claim. Id. at 275-273. In the context of employment
discrimination, “direct evidence” has been defined as “evidence which, if believed, requires the
conclusion that unlawful discrimination was at least a motivating factor in the employer’s
actions.” Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). Stated
differently, “[i]n the retaliation context, direct evidence of retaliation establishes without resort to
an inference that an employer’s decision to take an adverse employment action was at least in
part retaliatory.” Cuddington, 298 Mich App at 276.

        Because “[r]arely will an employer openly admit having fired a worker in retaliation for
exercising a right of employment,” a plaintiff may present circumstantial evidence to establish a
“rebuttable prima facie case of retaliation” and shift the burden “to the defendant to articulate a
legitimate, nondiscriminatory reason for its action.” Id. at 276-277. “A plaintiff can establish
that the employer’s proffered reasons for the adverse employment action qualify as pretextual by
demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating
the decision, or (3) were insufficient to justify the decision.” Id. at 277. A plaintiff must present
evidence from which a fact-finder could conclude that retaliation was a motivating factor. Id.
Mere temporal proximity between the protected activity and adverse employment action is
insufficient. West v Gen Motors Co, 469 Mich 177, 186; 665 NW2d 468 (2003).

        In this case, although there was no direct evidence of retaliation, there was evidence that
would allow a trier of fact to find that defendants knew that plaintiff suffered a work-related
injury, that she sought worker’s compensation benefits, and that her request for worker’s
compensation benefits was a motivating factor in the termination decision. Cuddington, 298
Mich App at 277. Plaintiff proffered the affidavit of a co-worker who testified that the e-mails

                                                  -5-
plaintiff received, which defendants argue show her poor track record, were common place at the
Caro Center. Plaintiff submitted performance evaluations from before her injury that showed
satisfactory progress and no complaints. These evaluations showed that, at six-months, plaintiff
was a satisfactory employee, yet, less than six months later and after her injury, defendants
viewed her performance as so poor that it warranted termination. Plaintiff also submitted
depositional testimony establishing that the supervisor who filled out the first two evaluations
considered her progress equal to that of other new RNs and that the Caro Center director
considered it unusual for an employee to be fired after receiving satisfactory ratings at the three
and six month intervals. Plaintiff also provided testimony that Weiler wrote her up without her
knowledge and did not discuss the issues with her before doing so. In addition, plaintiff testified
that when she returned to restricted work following her injury, one of her supervisors stated that
she was not going pay her to sit and answer telephones. This evidence is not direct evidence that
plaintiff was terminated because she filed for worker’s compensation benefits, but it does support
an inference to that effect. Reasonable minds could conclude that plaintiff’s termination was
motivated in part because she sought worker’s compensation benefits. Id.

        In arguing that the trial court erred in denying their motion for summary disposition,
defendants cite evidence to show that it was plaintiff’s poor performance that led to her
termination. However, at the summary disposition stage, issues involving the weight of the
evidence and the credibility of witnesses are to be left to the trier of fact. See e.g. Skinner v
Square D Co, 445 Mich. 153, 161; 516 NW2d 475 (1994) (a trial court may not make factual
findings or weigh credibility in deciding a motion for summary disposition). Here, plaintiff
presented a sufficient amount of evidence that a trier of fact needed to weigh against the
evidence proffered by defendants. Indeed, if a trier of fact were to believe plaintiff’s version of
the facts, including her testimony that her supervisor did not want to pay her to sit and do office
work, the trier of fact could conclude that defendants’ actions in terminating plaintiff were
motivated at least in part by a retaliatory animus. Cuddington, 298 Mich App at 277. Because a
finding that retaliatory animus was a motivation for terminating plaintiff’s employment would
constitute an absence of good faith on the part of defendants, defendants would not be entitled to
qualified governmental immunity. Alternatively, a fact-finder could conclude that, based on
defendants’ evidence, plaintiff was terminated for legitimate deficiencies in her performance.
Such a finding would support that defendants acted in good faith and were entitled to qualified
governmental immunity.

       Defendants’ argument that no factual dispute exists, assumes that plaintiff would be
required to prove her case with direct evidence of a retaliatory animus or by direct evidence of an
absence of good faith. However, as previously noted, plaintiff is not required to proffer direct
evidence of retaliatory animus because “[r]arely will an employer openly admit having fired a
worker in retaliation for exercising a right of employment.” Cuddington, 298 Mich App 276.
Rather, the circumstantial evidence viewed in a light most favorable to plaintiff, leaves open a
genuine issue of material fact regarding whether defendants acted with a retaliatory animus and
an absence of good faith or with malice.

                                       IV. CONCLUSION

        In sum, because there remained issues of fact as to whether defendants terminated
plaintiff with retaliatory animus in violation of the WDCA, there remained issues of fact as to

                                                -6-
whether defendants acted in good faith or without malice and thereby entitled to qualified
governmental immunity. The trial court did not err in denying defendants’ motion for summary
disposition.

        Affirmed. Plaintiff having prevailed, may tax costs. MCR 7.219(A). Jurisdiction is not
retained.



                                                         /s/ Stephen L. Borrello
                                                         /s/ Kathleen Jansen
                                                         /s/ Donald S. Owens




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