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### STATE OF MICHIGAN

COURT OF APPEALS

JIMMIE TURNER,

Plaintiff-Appellant, UNPUBLISHED June 27, 2017

v No. 331387
Genesee Circuit Court
THE BOARD OF HOSPITAL MANAGERS OF
HURLEY MEDICAL CENTER and/or HURLEY
HOSPITAL and/or HURLEY MEDICAL CENTER and STEVE SITAR, LC No. 15-104342-CZ

Defendants-Appellees.

Before: J ANSEN , P.J., and M URPHY and B ORRELLO , JJ.

P ER C URIAM

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Plaintiff appeals as of right a December 11, 2015, trial courtorder granting summary disposition in favor of defendants in this wrongful termination action involving the Whistleblower Protection Act (WPA), MCL 15.361 et seq . For the reasons set forth in this opinion, we affirm.

I. BACKGROUND

Defendant Hurley Medical Center (Hurley) terminated plaintiff’ s employment as a public safety officer after 15 years of service with the hospital. At the time, defendant Steve Sitar was plaintiff’s immediate supervisor . Plaintiff’s termination aros e out of an incident that occurred in the morning hours of November 15, 2014, where plai ntiff was sta tioned at a security post in front of the hospital’s emergency entrance. A man, later identified as Archie McClain, walked up to the security post and attempted to enter through the metal dete ctor. Plaintiff immediately suspected that McClain was intoxicated because “he was stumblin g all into it.” Plaintiff and his partner, officer Henry Hills, allowed McClain into the hospital because he said he was going to the emergency room. However, a nurse quickly informed plaintif f that McClain was attempting to go to another floor. Plainti ff then escorted McClain out of the building. A surveillance video showed plaintiff as he escorted McClain across the emergency dr ive. About halfway across, McClain turned and held his arms out as if ready to fight. The two men bumped their chests against each other until plain tiff pushed McClain to the ground . Plaintiff walked back to his station and called the on-site police officer. McClain was arr ested, and approximately nine days later, he returned to the hosp ital and filed a complaint, alleg ing he was assaulted.-2- Plaintiff was suspended pending an investigation, and on Janua ry 19, 2015, he was terminated. The termination notice provided:

Your suspension on 1-09-2015 for vi olating Hurley Medical Polic y #0387 Safe Workplace ( Violent Act – Any physical or verbal act or communication (including written, pictorial or electronic) reasonably perceiv ed to intend to inflict or threaten to inflict physical or psychological harm or suffer ing on another person) has been converted to an immediate termination as of Ja nuary 19 th , 2015 [sic] due to the seriousness of your intentional act and disreg ard to the safety of a person on Hurley Medical Cen ter Property while on duty.

Physical abuse and disregard to an individuals [sic] safety can not and will not be tolerated by the Medical Center. In addition to violating Poli cy #0387, you also committed a flagrant violation of Policy # 0022 Courtesy (It is the policy of Hurley Medical Center to treat every customer with overt courte sy. Customers of the Medical Center include physicians, patients and their famil ies, visitors, guests and other employees).

Labor relations officer Barry Fag an signed the termination not ice. After rev iewing public safety supervisor Jeffrey Woodard’s report and the surveillance video, Fagan informed Sitar that plaintiff should be “separated” f rom Hurley. Fagan explained a t his deposition that termination was appropriate because plaintiff abused a client, visitor, or possible patient. The abuse came in the form of “[s]hoving the man t o the ground and leaving him inthe roadway.” Fagan’s interpretation of the video was that plaintiff grabbed McClain by the shirt, pulled him close, and then pushed him down to the ground. Fagan further explained th at his only reason for firing plaintiff, as stated in the termination notice, was “for a viol ent or physical act against another person.”

Sitar testified at his deposition that plaintiff was terminate d due to a violation of the Safe Workplace Policy. The reason why plaintiff was not suspended u ntil January 6, 2015, was because McClain could not make a complaint until he was release d from jail, and plaintiff had gone on a month-long vacation. While watching the surveillance video at his deposition, Sitar admitted that plaintiff had not violated any use of force polic y when he grabbed McClain’s arm and guided him outside to the drive in front of the emergency r oom. However, Sitar explained that at one point plaintiff grabbed McClain, pulled him in, and then pushed him down. Sitar said that at no time did McClain charge towards plaintiff. It was a lso Sitar’s belief that plaintiff started “verbally berating” McClain. However, when asked if he knew what plaintiff was saying, Sitar admitted that there was no sound on the video—tho ugh his gestures and the movement of plaintiff’s mouth made it look “like a berating.” Sitar stated that plaintiff should have called a police officer immediately after McClain started back talking plaintiff in the hospital. Because of plaintiff’ s actions, Sitar recommended th at plaintiff be terminated, but Sitar said that he had “nothing to do with” the actual termination no tice. The termination was addressed by labor relations. Sitar stated that plaintiff “was n’t fired because he contacted the police officer. He was fired because he didn’t contact the pol ice officer when he should have.”

On February 28, 2015, plaintiff filed his complaint alleging t hat defendants wrongfully terminated his employment in violation of the WPA for reporting the trespassing incident to-3- Hurley staff and the Flint Police Department, for how plaintiff handled subsequent requests from Hurley employees and the Flint Police Department, and for how p laintiff “participated” in the incident. Therefore, plaintiff alleged, “[d]efendants discharg ed and/or discriminated and/or retaliated against [plaintiff] because he engaged in ‘protected activity.’” 1

On November 12, 2015, defendants moved for summary disposition , asserting that plaintiff’s claim under the WPA failed. Defendants explained t hat plaintiff’s WPA claim rested on the assertion that he was discharged from his employment for reporting McClain to a police officer, which was a protected activity under the WPA. Because plaintiff did not have direct evidence that he was fired for reporting the trespasser to the police, defendants indicated that the trial court was required to use the burden-shifting framework s et forth in McDonnell Douglas Corp v Green , 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), and applied by our Supreme
Court in Debano-Griffin v Lake County , 493 Mich 167; 828 NW2d 634 (2013). Defendants argued that plaintiff could not establish a prima facie case of retaliation under the WPA, i.e., that (1) plaintiff engaged in a protected activity; (2) he was disch arged from his employment, and (3)
there was a causal c onnection between the pr otected activity an d the discharge.

Defendants, assuming that the first two elements had been met, argued that the alleged protected activity under the WPA—reporting a trespasser to a po lice officer—was not the cause underlying plaintiff’s discharge. Instead, plaintiff was disch arged for a number of violations under Hurley’s policies, includi ng its use of force policy. Ad ditionally, defendants claimed that even if plaintiff could prove a prima facie case, they were ent itled to summary disposition nonetheless because plaintiff’s assaultive conduct towards another person while on duty was a legitimate reason for the dischar ge that was unrelated to the p rotected activity.

Following a hearing, the trial co urt entered an order granting defendants’ motion for summary disposition on December 14, 2015. In its written opini on, the trial court stated:

no reasonable jury could find that [p]laintiff’s act of calling the police to report a trespasser was a motivating factor in [d]efendants’ decision to fire him. Defendants fired [p]laintiff af ter conducting an investigation into allegations of excessive force regarding the trespasser. Defendants determine d that [p]laintiff
used excessive force and violated several Hurley policies with regard to the
incident.

The trial court noted that it cons idered only whether there was “evidence from which a reasonable jury could find that [p]laintiff’s act of calling th e police was a motivating factor in his termination.” The trial court determined that even though defe ndants based the termination, in part, on plaintiff’s failure to call the police before the situ ation escalated, there was no evidence that proved plaintiff was actually terminated for calling the p olice to report the trespasser. The trial court therefore denied pl aintiff’s motion for reconsidera tion. This appeal ensued.

1 Plaintiff also alleged that his termination violated public po licy; however, that claim is not at issue in this appeal.-4- II. ANALYSIS

On appeal, plaintiff argues that the trial court relied on the outdated “pretext plus” standard, rather than the “permissive pretext” standard, to gra nt summary disposition in favor of defendants. Therefore, plaintiff argues, had the trial court i mplemented the proper standard, his
claim would have survive d summary disposition.

We review de novo a trial court’ s granting of a defendant’s mo tion for summary disposition under MCR 2.116(C)(10). Dressel v Ameribank , 468 Mich 557, 561; 664 NW2d 151 (2003). We consider the affidav its, pleadings, depositions, ad missions, and other documentary evidence in the light most favorable to the nonmoving party. Liparoto Constr, Inc v Gen Shale Brick, Inc , 284 Mich App 25, 29; 772 NW2d 801 (2009). Summary dispositio n is appropriate under MCR 2.116(C)(10) when there is a genuine issue with respe ct to any material fact and the moving party is entitled to j udgment as a matter of law. Maiden v Rozwood , 461 Mich 109, 120; 597 NW2d 817 (1999).

“The WPA provides a remedy for an employee who suffers retalia tion for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body.” Anzaldua v Neogen Corp , 292 Mich App 626, 630; 808 NW2d 804 (2011). To establish a p rima facie case under the WPA, a plaintiff must s how that “(1) the plaintiff wa s engaged in protected activity as defined by the act, (2 ) the defendant took an adverse employmen t action against the plaintiff, and (3) ‘a causal connection exists b etween the protected activity’ and the adverse employment
action.” Debano-Griffin , 493 Mich at 175 (quotations omitted). As it pertains to the element of causation, “[a]bsent direct evide nce of retaliation, a plaintif f must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal li nk exists between the whistleblowing act and the employe r’s adverse employment action .” Id. at 176.

When a plaintiffrelies on circu mstantial as opposed to direct evidence of an employer’s retaliatory motive, the claim is examined under the McDonnell Douglas burden-shifting
framework. Debano-Griffin , 493 Mich at 175-176. Under the McDonnell Douglas framework, if a plaintiff establishes a pr ima facie case of retaliation, t he burden then shifts to the employer to proffer a legitimate, nonretaliatory reason for the adverse emp loyment action. Debano-Griffin

, 493 Mich at 175-176. “If the defen dant produces a legitimate, nondiscriminatory reason for its action, the plaintiff must demonstrate that the evidence in the case, when construed in the plaintiff’s favor, is sufficient to permit a reasonable trier o f fact to conclude that [retaliation] was a motivating factor for the adverse action[.]” Cuddington v United Health Servs, Inc , 298 Mich App 264, 277; 826 NW2d 519 (2012). “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 facto rs motivating the decision, or (3) were insufficient to j ustify the decision.” Id

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On appeal, plaintiff argues thatthe trial court applied the w rong pretext standard. However, plaintiff’s argument as to the issue of pretext is irr elevant unless plaintiff first establishes a prima facie case of retaliation. In this case, the trial court held thatplaintiff failed to prove a prima facie case of retaliation. As a result of the trial court’s ruling, there was no need under the trial court’s analysis to determine whether defendant s’ proffered legitimate reason for-5- terminating plaintiff was pretex tual. Therefore, we begin our analysis by examining whether the trial court erred by holding that pl aintiff failed to set forth a prima facie case of retaliation.

Defendant does not dispute that plaintiff was engaged in a pro tected activity when he called police on the night of the incident or that the terminat ion was an adverse employment action; thus, whether plaintiff established a prima facie case of retaliation turns on the element of causation—i.e. whether plaintiff’ s protected activity of notify ing police was causally connected
to his termination. Debano-Griffin , 493 Mich at 175.

Plaintiff argues that defendants began their investigation nin e days after he engaged in a protected activity, i.e., calling the police to report a trespa sser on the premises, and this short length of time shows a causal connection. However, “a temporal relationship, standing alone, does not demonstrate a causal connection between the protected activity and any adverse employment action.” Id . at 177 (quotation marks omitted). Instead, “[s]omething more than a temporal connection between protected conduct and an adverse em ployment action is required to
show causation when retaliation is claimed.” Id . (quotation marks omitted). Here, other than temporal proximity, this Court cannot find from this recordevid ence of a causal connection between the protected activity a nd plaintiff’s termination. To the contrary, plaintiff admitted that his supervisor and the police o fficers initially commended plai ntiff for calling the police. In fact, plaintiff admitted that, on average, he would call the police f our to five times a day when confronting trespassers. Furthermore, defendants took no actio n against plaintiff until McClain came forward over a week later with allegations that plaintiff assaulted him, which supported defendants’ assertion that the motive for terminating plaintiff was based on the assault and not the act of notifying police. Mor eover, plaintiff was not termi nated until defendants reviewed the surveillance video, completed the investigation, and determined whether plaintiff actually violated Hurley’s use of force policy. Hence, in the absence o f any evidence to suggest that the close temporal proximity between plaintiff calling the police a nd his termination had to do with anything other than the use of excessive force against McClain, we find that plaintiff’s reliance
on this assertion unsub stantiated and therefore unconvincing S imply stated, where there was no evidence to support a reasonable inference that plaintiff’s act of notifying police was causally
connected to defendants’ decisi on to terminate plaintiff, plain tiff did not establish a prima facie
case of retaliation under the WPA. Id . Because plaintiff failed to establish a prima facie case under the WPA, we need not determi ne whether a rational trier o f fact could conclude that defendants’ proffered legitimate reason for terminating plainti ff’s employment was instead a pretext for unlawful retaliation. Id . at 176.

Plaintiff also argues on appeal t hat there was direct evidence of retaliation. “Where direct evidence is offered to prove discrimination, a plaintiff is not required to establish a prima
facie case within the McDonnell Douglas framework, and the case should proceed as an ordinary
civil matter.” DeBrow v Century 21, Great Lakes, Inc , 463 Mich 534, 539-540; 620 NW2d 836 (2001). It is only when a plaintiff cannot show direct evidenc e of a causal connection between his protected activity and his employer’s act of discharging hi m that indirect evidence is needed
to infer unlawful retaliation. Debano-Griffin , 493 Mich at 176.

Plaintiff argues that Sitar’s de position testimony amounted to direct evidence of retaliation. Specifically, plaint iff argues that Sitar’s testi mony shows that plaintiff was fired because he called the police. From the record evidence present ed we cannot find an inference-6- that would support plaintiff’s a ssertion. The record reveals th at Sitar testified that defendant should have immediately notified the police of McClain’s trespa ss. This evidence does not lead to an inference that plaintiff’s discharge was premised on his calling the police. Rather, the testimony leads to the inference stated by Sitar, specifically that plaintiff “wasn’t fired because he contacted the police officer. He was fired because he didn’ t contact the police officer when he should have.” A failure to call the police in a timely mann er cannot reasonably be considered direct evidence that defendants terminated plaintiff for callin g the police. Accordingly, there
was no direct evidence of retalia tion and the trial court did n ot err in granting defendants’ motion for summary disposition.

Affirmed. No costs awarded. MCR 7.219(A).

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Stephen L. Borrello