NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0318n.06

No. 20-1769

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DANIEL OGDEN KERBER; SHEILA KERBER,

Plaintiffs-Appellants,

v.

WAYNE COUNTY EMPLOYEES RETIREMENT 

SYSTEM; ROBERT GRDEN, individually and in 

his official capacity as Director of Wayne County 

Employees Retirement System; WAYNE COUNTY 

AIRPORT AUTHORITY, 

Defendants-Appellees.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF MICHIGAN

BEFORE: GIBBONS, COOK, and DONALD, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. This case arises out of Daniel Kerber’s 

retirement from the Wayne County Airport Authority and the ensuing controversy over his pension 

benefits. As part of his severance agreement, Kerber was permitted to transfer from retirement 

Plan Five to Plan One, which afforded him a significantly more generous pension. In return, he 

was required to transfer all of the funds in his defined contribution account back into the retirement 

system. When he failed to make the requisite transfer, and instead withdrew the money for his 

own personal use, the retirement system alerted the Wayne County Prosecutors’ Office, which 

brought charges. The retirement system then temporarily halted his pension payments without 

notice or a hearing. The system eventually reinitiated his payments at the Plan Five (pre-severance 

agreement) rates, but sharply reduced the amount to compensate the system for the overpayments 

Kerber had received through his Plan One payments. All criminal charges were eventually 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

2

dismissed by the Michigan Court of Appeals and Kerber brought this lawsuit alleging numerous 

federal and state claims against numerous defendants. The district court ultimately agreed with 

Kerber that he was entitled to a pre-deprivation hearing before the retirement system cut off his 

pension payments and subsequently reduced them. However, because the system accurately found 

that Kerber was not entitled to the enhanced Plan One payments and it was within its rights to 

reduce future Plan Five payments to compensate for past overpayments, the court granted Kerber 

only nominal damages of $1. Kerber appealed, arguing that (1) the district court erred in holding 

that he was not entitled to Plan One payments, (2) that he is entitled to punitive damages, and 

(3) that his remaining state law claims against his former employer and an individual employee of 

the retirement system should not have been dismissed. We affirm the district court’s decision.

I. 

Daniel Kerber was hired as the Deputy Director of Operations of the Wayne County 

Airport Authority (“WCAA”) in 1985.1 When he joined WCAA, he entered the Wayne County 

Employee Retirement Services (“WCERS”) benefit program in Plan One, a purely defined benefit 

plan. Between 1985 and 2005, Kerber switched from Plan One to Plan Four and then to Plan Five. 

Plan Five was a “hybrid retirement plan,” meaning it consisted of both defined contribution (401K) 

and defined benefit (pension) components. When he retired in 2009, Kerber signed a severance 

agreement with WCAA that allowed him to transfer back into Plan One, the defined benefit plan.2 

This agreement provided Kerber with significantly more generous retirement benefits ($11,337.48 

per month compared to $6,056.38 per month), and in exchange the agreement stated that “the 

[WCAA] agrees to allow [Kerber] to transfer his Plan [Five] defined contribution pension assets 

1 Kerber was initially hired by Wayne County as the Deputy Director of Operations of Airports before WCAA was 

created as a political subdivision in 2002. 

2 According to the Deputy Director of WCERS, this option had never previously been offered to an employee. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

3

to Plan [One.]” DE5-1, Severance Agreement, Page ID 190. Kerber further had to relinquish any 

future claim against WCAA, except to enforce the severance agreement, in consideration for the 

increased pension. Although WCERS did transfer Kerber’s defined benefit assets of $475,000 to 

Plan One, it did not transfer the roughly $340,166 he held in his defined contribution account, the 

amount that the severance agreement stated he would transfer to Plan One. That amount “remained 

in [Kerber’s] Plan [Five] defined-contribution account” at Prudential bank. DE5, Amended 

Compl., Page ID 147, 155. 

Over a year later (during which time Kerber was receiving regular monthly pension 

payments at the heightened Plan One amount), Kerber contacted Prudential and requested a 

distribution of the funds in his old Plan Five defined contribution account. Following protocol, 

Prudential contacted WCERS, and a WCERS employee “reviewed and approved” the distribution. 

Prudential withheld taxes and sent Kerber a check for $277,431.40, the entire amount in his defined 

contribution account. 

When Robert Grden, the Executive Director of WCERS, learned that Kerber may have 

failed to make the transfer of his defined contribution assets but was receiving Plan One benefits, 

and indeed had received a distribution of the funds he had agreed to transfer, he directed WCERS 

employee Kelly Tapper to review Kerber’s file. Tapper informed Grden that she believed that 

Kerber had violated the severance agreement by failing to transfer his defined contribution funds,

and Grden reported the issue, which he believed to be fraudulent, to the Wayne County 

Prosecutor’s Office (“WCPO”). The WCPO investigated the matter, asking two WCERS 

employees how they interpreted the language of the severance agreement, to which the employees 

responded that they believed Kerber was required to transfer his Plan Five funds in order to be 

eligible to receive Plan One pension distributions. In August 2015, while the WCPO investigation 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

4

was ongoing, WCERS temporarily halted Kerber’s pension payments without giving him notice 

or holding a hearing. 

The WCPO charged Kerber with larceny by conversion and false pretenses for the 

disbursement of the roughly $277,000 of his Plan Five defined contribution funds. These charges 

were eventually dismissed after being heard by the Michigan Court of Appeals twice. The WCPO 

again charged Kerber, this time with larceny and larceny by conversion for accepting the monthly 

Plan One pension. The charges were again dismissed. 

In October 2016, Kerber (through his attorney) requested that WCERS reinstate his 

pension. WCERS denied the request and informed Kerber that he could appeal the denial and 

request a formal hearing before the retirement commission. Kerber again requested reinstatement 

in June, noting that all criminal charges against him had been dismissed. In November, Kerber 

informed WCERS that he would be formally appealing and requested a hearing. This hearing took 

place on January 30, 2017, and the commission voted to deny his appeal in a closed session. In 

October 2018 WCERS met again to determine how to proceed with regard to Kerber’s pension. 

WCERS’s counsel advised WCERS that Kerber had failed to satisfy the condition precedent in the 

severance agreement (i.e., the transfer of his defined contribution funds) and therefore had never 

been entitled to Plan One distributions. WCERS accepted this recommendation and decided to 

reinitiate Kerber’s Plan Five pension disbursements ($6,056.38 per month), but to decrease the 

payment to compensate the system for the prior overpayments. 

In June 2018, Kerber and his wife, Sheila Kerber, sued numerous defendants on numerous 

counts in federal court.

3

 As defendants he named WCERS, its Executive Director Robert Grden, 

3

In August 2018, Kerber amended his complaint. He later moved to amend his complaint a second time in order to 

add First Amendment claims against WCPO, but that motion was denied and the first amended complaint is operative. 

Kerber does not appeal the denial of his motion to amend. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

5

Division Director of Information Services Kelly Tapper, WCAA, WCPO, and individual 

prosecutors Anthony Domek, Kym Worthy, and Robert Donaldson. 

In Count One, Kerber sought a declaratory judgment that WCPO, the individual 

prosecutors, and the two WCERS employees had violated his constitutional rights and the 

reinstatement of his pension benefits. Count Two sought an injunction against impairing or 

diminishing his benefits. Count Three alleged deprivation of property without due process under 

§ 1983 against WCPO, the individual prosecutors, WCERS, and the two WCERS employees. 

Count Four alleged arrest without probable cause under § 1983 against Domek. Count Five alleged 

municipal liability under § 1983 against WCPO for deprivation of his rightful benefits. Count Six 

was a false arrest claim against Domek. Counts Seven and Nine were § 1983 claims for 

prosecution without probable cause. Count Eight was a malicious prosecution claim against 

Tapper and the three individual prosecutors. Count Ten was a defamation claim against Worthy. 

Count Eleven alleged impairment or diminution of pension benefits in violation of the Michigan 

Constitution against all defendants. Count Twelve alleged that WCAA tortiously interfered with 

Kerber’s benefits. Count Thirteen alleged intentional infliction of emotional distress against all 

defendants. Finally, Count Fourteen, brought by Kerber’s wife Sheila Kerber, alleged loss of 

consortium against all defendants. 

Kerber moved for a preliminary injunction and a show cause order as to why his pension 

benefits should not be restored, which the district court denied. WCAA moved to dismiss the 

charges against it under Federal Rule of Civil Procedure 12(b)(6), arguing that Kerber had failed 

to show that WCAA had exercised any control over WCERS and its decision to terminate his 

benefits. WCAA also argued that, as a governmental agency, it is immune from tort liability. The 

district court granted this motion, first noting that the only counts “that seem[ed] to pertain to 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

6

WCAA” were the diminution of Kerber’s pension benefits in violation of the Michigan 

constitution and tortious interference. DE47, Order re. WCAA, Page ID 1640. The court went on 

to explain that the relevant portion of the Michigan constitution does not create a cause of action, 

and Kerber had failed to demonstrate that “WCAA took any action to cause an interference with 

Mr. Kerber’s relationship to WCERS or to instigate [WCERS] to breach its contract.” Id. at Page 

ID 1643.) The claims against WCAA were thus dismissed. 

WCPO and the individual prosecutors also moved to dismiss under Rule 12(b)(6), and the 

district court granted the motion, dismissing the claims against WCPO, Domek, Worthy, and 

Donaldson.

4

 

WCERS and Robert Grden, and separately Kelly Tapper (the only remaining defendants), 

also moved to dismiss.5 The court denied this motion in part and granted it in part. The court held 

that it did not owe WCERS’s decision any administrative deference because it had not produced 

any administrative record. Nonetheless, WCERS was correct that the language of the contract 

clearly stated that, because Kerber failed to transfer the defined contribution assets as required by 

the contract, he had no entitlement to Plan One pension benefits. Kerber did, however, have an 

entitlement to his Plan Five benefits, and had a right to “be heard in a meaningful time and in a 

meaningful manner” before WCERS reduced those benefits. DE50, Order re. WCERS and 

WCPO, Page ID 1697. The court therefore denied the WCERS defendants’ motions to dismiss as 

to Kerber’s § 1983 claim for deprivation of property without due process of law. This left Kerber 

with one due process deprivation claim against WCERS, Grden, and Tapper and state law claims 

4 Kerber does not appeal this order.

5 Both parties brought their motions under Federal Rule 12(b)(1), which governs the court’s jurisdiction. The district 

court, however, correctly stated that because the parties were actually arguing that Kerber had failed to state a claim, 

the motions were more properly decided under Rule 12(b)(6). 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

7

against Grden. The parties stipulated to dismissal of all claims against Tapper, leaving only 

WCERS and Grden as defendants. 

WCERS and Grden moved for summary judgment. Because the court had already 

determined that Kerber had no legitimate interest in his enhanced pension, and because WCERS 

was within its rights to recoup the previous overpayments, WCERS and Grden asserted that the 

only remaining question was whether Kerber received adequate process. WCERS and Grden, of 

course, argued that he had. The district court disagreed, holding that WCERS deprived Kerber of 

due process by failing to offer a pre-deprivation hearing. Because, however, Kerber was in fact 

not entitled to the enhanced pension, and WCERS was correct that it had the right to recoup 

overpayments, the court granted Kerber only nominal damages of $1.6 The court also held that 

Grden was entitled to governmental immunity for all of Kerber’s remaining state law claims 

because Grden had reasonably believed that he was acting pursuant to his job. For the reasons 

described below, we affirm the district court’s disposition as to all of Kerber’s claims. 

II.

There are three main issues before us on appeal. First, Kerber appeals the award of $1 in 

nominal damages on the § 1983 denial of due process claim against WCERS and Grden (Count 

Three). Second, he appeals the state law intentional infliction of emotional distress claim asserted 

against Grden (Count Thirteen), and his wife appeals the state law loss of consortium claim 

asserted against Grden (Count Fourteen). Kerber argues that the district court erred in holding that 

Grden was entitled to governmental immunity under Michigan law for these claims. Third, he 

6

In this order, the district court did not rely solely on the contractual language, but provided three additional state law 

justifications: (1) WCAA had failed to conduct a study “of the long term effects of the pension as required by MCL 

38.1132,” (2) WCAA and Kerber failed to provide WCERS with a copy of the severance agreement, and (3) “no labor 

group had been offered a similar option to transfer into [Plan 1], as required by MCL 46.12a.” DE83, Order re. Summ. 

J., Page ID 2756−57. Kerber did not brief these issues on appeal, and they are not necessary to our determination. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

8

appeals the district court’s dismissal of Count Twelve against WCAA for tortious interference with 

a contract. 

A.

i. 

We first hold that the district court was correct in determining that Kerber was only entitled 

to Plan Five benefits, and thus only nominal damages. The district court addressed the 

interpretation of Kerber’s severance agreement in its orders regarding both WCERS’s and Grden’s 

initial motion to dismiss under 12(b)(6) and their subsequent motion for summary judgment. The 

proper interpretation of the agreement is a question of law that we review de novo. See Solo v. 

United Parcel Serv. Co., 819 F.3d 788, 793 (6th Cir. 2016); Hunt v. Sycamore Cnty. Sch. Dist. Bd. 

of Educ., 542 F.3d 529, 534 (6th Cir. 2008) (“The standard of review for summary judgment is de 

novo”); Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd., 525 F.3d 409, 421 (6th Cir. 

2008) (“Questions of contract interpretation, including those that form the basis for the grant of 

summary judgment, are subject to de novo review.”) Per the choice of law clause, the severance 

agreement is governed by Michigan law. 

ii.

Kerber sued WCERS for cutting off, and subsequently reducing, his pension payments and 

the district court agreed that he had stated a claim for a due process violation because WCERS had 

failed to provide him with a constitutionally adequate pre-deprivation hearing.7 The parties do not 

appeal this ruling. The court went on to analyze the contractual language to determine whether 

7 Before addressing the merits, the district court held that it did not owe WCERS any deference because the agency 

had not provided a record on which its decision was based or explained its reasoning. The district court was correct. 

We must affirm an agency’s finding that is “substantially supported in the record.” Rogers v. Comm’r of Soc. Sec., 

486 F.3d 234, 241 (6th Cir. 2007). WCERS reached its decision regarding Kerber in a closed session and details of 

its decision process are not in the record before us. We cannot give deference to an administrative record that we do

not have.
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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Kerber was entitled to Plan One benefits or only Plan Five benefits. If he was entitled to Plan One 

benefits, then he would have suffered a significant harm: the diminution of his rightful benefits 

over a period of several years. If, however, he had not fulfilled his side of the agreement, then he 

had at no point been entitled to the enhanced benefits and the amount of his harm was much less. 

WCERS would have reduced Kerber’s benefits to recoup the overpayments even if he had been 

granted a constitutionally adequate procedure. 

The severance agreement includes the following language: “Except in the event of 

revocation by Employee under paragraph 7 of this Agreement, the Authority agrees to allow 

Employee to transfer his Plan 5 defined contribution pension assets to Plan 1, and elect Plan 1 as 

his retirement plan.” 8 DE5-1, Severance Agreement, Page ID 190.

The district court held that:

The contractual language is clear on its face. Mr. Kerber had the option of 

transferring his Plan Five defined contribution assets to Plan One and collecting a 

pension under Plan One. He did not transfer those assets, and so he has no 

legitimate entitlement, under the severance contract, to a pension from those 

defined contribution assets that he withdrew from the fund.

DE50, Order re. WCERS and WCPO, Page ID 1695. The court held that because the transfer of 

Kerber’s defined contribution assets to Plan One was a condition precedent that he had failed to 

meet, WCAA was under no obligation to pay him Plan One benefits. 

Kerber argues that this clause was not a condition precedent because the phrase “agrees to 

allow” in the severance agreement is permissive. In the alternative, he argues either that the 

8 During the criminal case against Kerber, the Michigan Court of Appeals interpreted this language as permissive, 

meaning that it did not require a transfer of the funds in order to qualify for Plan One benefits. People v. Kerber, No. 

340663, 2018 WL 2222845, at * 5 (Mich. Ct. App. May 15, 2018). It appears that this holding was premised in large 

part on Tapper’s testimony during the course of that case that it was in fact impossible to make the transfer described 

by the agreement. Id. As noted below, that testimony by Tapper is not in the record before us. The Michigan court 

also reached this holding in relation to the criminal larceny charges against Kerber, and it supported their holding that 

even if Kerber was not entitled to Plan One benefits, he could not steal money to which he held title. Id. at *5−6. 

That case was unpublished and therefore is at most persuasive. Woodring v. Phoenix Ins. Co., 923 N.W.2d 607, 610 

(Mich. Ct. App. 2018). 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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condition was factually impossible for him to meet or that WCERS waived the condition by 

placing him into Plan One and continuing to make Plan One payments despite his failure to meet 

the condition. WCERS and Grden respond that the language clearly created a condition precedent 

and that Kerber failed to produce any evidence that the condition was impossible. 

A condition precedent is “[a]n act or event, other than a lapse of time, that must exist or 

occur before a duty to perform something promised arises. If the condition does not occur and is 

not excused, the promised performance need not be rendered.” Condition Precedent, Black’s Law 

Dictionary (11th ed. 2019). In essence, it is a condition that both parties expect to be met before 

there is a right to performance. MacDonald v. Perry, 70 N.W.2d 721, 725 (Mich. 1955). The 

language in the severance agreement clearly conditioned Kerber’s entitlement to Plan One benefits 

on the transfer of his defined contribution assets. He is correct that “agrees to allow” is permissive, 

but that simply means that the entire paragraph is permissive. He is allowed to transfer the funds 

and elect Plan One. He could choose to do neither, but if he elects Plan One, he must transfer the 

requisite funds. The parties’ intent is clear; Kerber was purchasing a significantly more lucrative 

pension, not receiving one for free. See Sikkema v. Pro. Benefits Servs., Inc., No. 352295, 2020 

WL 6940787, at *4 (Mich. Ct. App. Nov. 24, 2020) (per curiam), appeal denied, 957 N.W.2d 774 

(mem.) (Mich. Apr. 27, 2021). 

Kerber has also failed to create a question of material fact as to the impossibility of 

performance of the contract. Kerber cites testimony by Tapper in the course of the since-dismissed 

criminal case against him, but that testimony is nowhere in the record. There is only a very limited 

transcript in the record of the preliminary examination from which the relevant quotes allegedly 

came, and none of it includes the quoted language that “[y]ou can’t transfer plan five assets to plan 

one.” CA6 R.38, Appellant’s Br., at xiii; see also DE52, Day 2 Preliminary Exam Transcript. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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Without any genuine question as to the impossibility of performance in the record, WCERS and 

Grden are entitled to summary judgment on the issue.

Nor did WCERS waive the condition through its actions. A party “cannot avoid liability 

on [a] contract for the failure of a condition precedent where [it] caused the failure of the 

condition.” Harbor Park Mkt., Inc. v. Gronda, 743 N.W.2d 585, 588 (Mich. Ct. App. 2007). 

Under Michigan law, to waive a condition, a “party must prevent the condition from occurring by 

either taking some affirmative action, or by refusing to take action required under the contract.” 

Id. at 589. An example of waiver would be requiring an appraisal and then refusing to meet with 

the appraiser. Id. No one disputes that WCERS failed to transfer the funds to Plan One at the time 

that the agreement was signed, but a failure to act is neither an affirmative action nor a refusal to 

act. By failing to timely transfer the funds, WCERS was not placing an “obstacle in the way of 

the” condition. Mehling v. Evening News Ass’n, 132 N.W.2d 25, 26 (Mich. 1965) (quoting Hayes 

v. Beyer, 278 N.W. 764, 766 (Mich. 1938)). Further, Kerber withdrew the funds from Prudential, 

rendering it impossible for WCERS to successfully transfer the funds when it learned of the error. 

The transfer of Kerber’s defined contribution assets was clearly a condition precedent on 

which his eligibility for Plan One benefits depended. Though WCERS made a serious error in 

failing to timely transfer the funds, it did not waive the condition. The district court did not, 

therefore, err in holding that Kerber was never entitled to the enhanced Plan One benefits and 

WCERS was within its rights to reduce his disbursements to recoup the overpayments. As he was 

not entitled to compensatory damages, the award of $1 in nominal damages was not an abuse of 

discretion.9 

9 Kerber argues on appeal that WCERS’s recoupment was limited by Michigan law to two years of overpayments. He 

never made this argument before the district court in response to WCERS and Grden’s motions to dismiss, and so has 

forfeited the argument before us. Frazier v. Jenkins, 770 F.3d 485, 497 (6th Cir. 2014).
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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B.

i. 

Kerber next argues that, compensatory damages aside, he is entitled to punitive damages 

for WCERS’s termination of his benefits. As with our review above, we review this decision 

regarding damages for abuse of discretion. Hance v. Norfolk S. Ry. Co., 571 F.3d 511, 517 (6th 

Cir. 2009) (per curiam). “A court abuses its discretion when it relies on clearly erroneous findings 

of fact, or when it improperly applies the law or uses an erroneous legal standard.” United States 

v. City of Warren, 138 F.3d 1083, 1096 (6th Cir. 1998) (quoting Phelan v. Bell, 8 F.3d 369, 372 

(6th Cir. 1993)). 

ii. 

Kerber’s argument rests primarily on the fact that WCERS owed him a fiduciary duty as a 

member of the system but failed to communicate with him before stopping his benefit payments. 

WCERS and Grden respond that punitive damages are only available if Kerber “can demonstrate 

that [they] acted with malicious or reckless disregard of [Kerber’s] constitutional rights.” CA6 

R.41, WCERS and Grden Appellee Br., at 44. 

WCERS and Grden are correct. Whether Kerber is entitled to punitive damages does not 

hinge on WCERS’s status as a fiduciary, but rather on whether WCERS was “motivated by evil 

motive or intent,” or acted with “reckless or callous indifference to the federally protected rights 

of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Kerber has submitted no evidence that WCERS 

acted with evil intent. The record reflects that WCERS cut off his pension in August 2015after 

Grden became concerned that Kerber’s failure to transfer the defined contribution funds 

constituted fraud. Grden testified that the WCPO had instructed him not to communicate with 

Kerber due to their ongoing investigation. The district court correctly pointed out that this may 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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have been negligent on WCERS’s and Grden’s part, but there is no indication that it was reckless, 

evil, or malicious. When WCERS eventually did grant Kerber a hearing, it allowed his attorney 

to submit written materials and argue in person on his behalf. Then, acting on the advice of its 

legal counsel, WCERS determined that it had been overpaying Kerber and that it was obligated to 

reduce further payments to recoup its losses. Nothing in this account of WCERS’s deliberations, 

or of Grden’s decision-making, suggests malicious intent. 

Because Kerber has failed to create a genuine dispute as to WCERS and Grden’s malicious 

intent, we affirm the district court’s denial of punitive damages. 

C.

i. 

The district court granted Grden’s motion for summary judgment on Kerber’s two state 

claims, holding that he was entitled to governmental immunity under Michigan law. Kerber 

appeals. We review a grant of summary judgment de novo. Hunt, 542 F.3d at 534. The court 

must view “all the evidence in the light most favorable to the nonmoving party and draw[] ‘all 

justifiable inferences’ in his favor.” Fisher v. Nissan N. Am., Inc., 951 F.3d 409, 416 (6th Cir. 

2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

ii.

In its order on WCERS and Grden’s summary judgment motion, the district court held that 

Grden was entitled to governmental immunity under Michigan law for Kerber’s state law claims 

against him. Kerber argues that this was an error because Grden could not have reasonably 

believed that he was acting in the course of his employment when he cut off Kerber’s benefits. He 

argues that the existence of fraud and the termination of benefits are entirely separate issues, and 

Grden was aware of this. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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Michigan law extends governmental immunity to individuals whose challenged acts were 

“undertaken in good faith . . . during the course of employment” when “the employee was acting, 

or reasonably believed he was acting, within the scope of his authority.” Odom v. Wayne Cnty., 

760 N.W.2d 217, 218 (Mich. 2008). The question is, therefore, whether Grden reasonably believed 

he was acting within the scope of his authority, even knowing now that it was incorrect for him to 

terminate Kerber’s benefits without adequate process. Grden testified that he believed that the 

evidence suggested Kerber was fraudulently receiving enhanced pension benefits. He reported the 

potential fraud to the WCPO, and then terminated the benefits without providing notice because 

he was “not allowed to contact Mr. Kerber after” meeting with the WCPO. DE76-2, Grden Dep. 

Tr., Page ID 2395. He was the Executive Director of the Wayne County Employees Retirement 

System. It was clearly within his authority and job description to protect the system against fraud. 

Whether he was correct as to the legal sufficiency of the process that he afforded Kerber is not the 

question, but rather whether he reasonably believed that he was acting within the scope of his 

authority. See Mich. Comp. Laws § 691.1407. His deposition makes clear that he believed that 

the system was incorrectly overpaying Kerber, and that he reported the issue to WCPO and 

terminated the benefits to protect the integrity of the system. The district court already made clear 

that the termination of Kerber’s benefits without due process was unconstitutional, so we need not 

discuss that issue again here. We agree with the district court that Grden was entitled to 

governmental immunity because Kerber has provided no evidence that Grden did not reasonably 

believe that he was acting within the scope of his authority. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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D.

i.

Kerber’s final argument is that the district court erred in granting WCAA’s motion to 

dismiss under Rule 12(b)(6) for failure to state a claim. In reviewing a motion to dismiss, we must 

“accept all well-pleaded factual allegations as true,” and “examine whether the complaint contains 

‘sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.’” 

Solo, 819 F.3d at 793 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009)). 

ii.

The only claim against WCAA relevant on appeal is Count Fourteen for Tortious 

Interference with a Contract.10 The district court granted WCAA’s motion to dismiss, holding that 

Kerber had failed to state a claim that WCAA “took any action to cause an interference with Mr. 

Kerber’s relationship to WCERS.” DE47, Order re. WCAA, Page ID 1643. WCAA did not cause 

WCERS to suspend Kerber’s pension, and it continued to make payments to Kerber until WCERS 

suspended the pension. The district court rejected Kerber’s argument that WCAA is liable for 

WCERS’ “alleged wrongdoing” through its ratification of or acquiescence in WCERS’ suspension 

of his benefits. 

Kerber argues that because WCAA was a party to the severance agreement, it had the 

authority (and duty) to ensure that the agreement was carried out. WCAA responds first that it is 

entitled to governmental immunity and, second, that Kerber cannot sustain a claim for tortious 

interference without alleging an affirmative act. 

10 Kerber initially included WCAA in Count Eleven under the Michigan Constitution for impairment or diminution of 

his retirement benefits, but the district court held that that constitutional provision does not create a cause of action 

and Kerber does not appeal this holding. 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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“The elements of tortious interference with a contract are (1) the existence of a contract, 

(2) a breach of the contract, and (3) an unjustified instigation of the breach by the defendant.” 

Health Call of Detroit v. Atrium Home & Health Care Servs., Inc, 706 N.W.2d 843, 848–49 (Mich. 

2005). To sustain a claim for tortious interference, “the plaintiff must establish that the defendant 

was ‘a third party’ to the contract rather than an agent of one of the parties.” Lawsuit Fin., L.L.C.

v. Curry, 683 N.W.2d 233, 241 (Mich. Ct. App. 2004) (quoting Reed v. Mich. Metro Girl Scout 

Council, 506 N.W.2d 231, 233 (Mich. Ct. App. 1993)). WCAA is not a third party to the severance 

agreement, it was a signatory to the agreement. WCERS is a third party. Under Michigan law, 

therefore, WCAA is not a proper defendant to a tortious interference claim under these 

circumstances. 

Regardless, the district court was correct that Kerber cannot sustain a claim for tortious 

interference where he alleges only inaction on the part of WCAA. “[O]ne who alleges tortious 

interference with a contractual or business relationship must allege the intentional doing of a per 

se wrongful act or the doing of a lawful act with malice and unjustified in law for the purpose of 

invading the contractual rights or business relationship of another.” Feldman v. Green, 

360 N.W.2d 881, 891 (Mich. Ct. App. 1984). Kerber does not allege a per se wrongful act, but 

rather a failure to ensure that WCERS carried out the intent of the agreement. 

Because he does not allege a per se wrongful act, Kerber must “demonstrate specific, 

affirmative acts that corroborate the unlawful purpose of the interference.” Knight Enters., Inc. v. 

RPF Oil Co., 829 N.W.2d 345, 348 (Mich. Ct. App. 2013) (quoting Badiee v. Brighton Area Sch., 

695 N.W.2d 521, 539 (Mich. Ct. App. 2005)). His complaint did not do so, alleging only that 

“[WCAA] intentionally and improperly ceased making payments to WCERS” and “caused a 

disruption and/or termination of the business expectancy or relationship between [Kerber and 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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WCERS].” DE5, Amended Compl., Page ID 182−32. This is not an allegation of an affirmative 

action, particularly because (as the district court noted) WCAA did not cease payments until 

WCERS had terminated his benefits. Kerber argues that “[b]y staying silent regarding [Tapper’s 

incorrect] interpretation [of the severance agreement], WCAA gave tacit approval to the 

unconstitutional actions of WCERS that followed.” CA6 R.38, Appellant’s Br., at 28. “Tacit 

approval” is not an affirmative act. An affirmative act is when “the defendant ‘unjustifiably 

instigated or induced’ the party to breach its contract.” Knight Enters., 829 N.W.2d at 348 (quoting 

Derosia v. Austin, 321 N.W.2d 760, 762 (Mich. Ct. App. 1982)). WCAA took no action that 

induced WCERS to terminate Kerber’s pension benefits. Furthermore, WCERS was not party to 

the severance agreement and therefore did not “breach its contract” with Kerber. 

Finally, Kerber argues that the district court dismissed his claim against WCAA before he 

had engaged in the discovery necessary to find evidence of his allegations. WCAA correctly points 

out, however, that the correct action for Kerber to take would be to move to amend his complaint 

against WCAA to reflect this newly discovered evidence, which he failed to do. Kerber did move 

to amend his complaint following the dismissal of WCAA, but it was only to add claims and factual 

allegations against WCERS and Grden, not WCAA. Because he never raised this issue before the 

district court, he has forfeited it before us. Frazier, 770 F.3d at 497.

III.

We affirm the district court’s award of $1 in nominal damages because, although WCERS 

did violate Kerber’s constitutional right to due process by failing to provide him with an adequate 

pre-deprivation hearing, this failure did not ultimately lead to the diminution of his pension 

benefits. Rather, Kerber failed to meet his end of the bargain in the severance agreement and thus 

was not entitled to the enhanced pension benefits that he was receiving under Plan One. Moreover, 
No. 20-1769, Kerber v. Wayne County Employees Retirement System

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because he did not demonstrate that WCERS acted with evil or malicious intent, he was not entitled 

to punitive damages. Finally, the district court correctly dismissed his claims against Grden 

because of governmental immunity and against WCAA for failure to state claim.