DEBANO-GRIFFIN v LAKE COUNTY Docket No. 143841. Argued October 10, 2012 (Cale ndar No. 6). Decided February 8, 2013. Cheryl Debano-Griffin brought an action in the Lake Circu it Court against Lake County and the Lake County Board of Commissioners alle ging, in part, that she had been terminated from her position as the director of Lake County’s 911 department in violation of the Whistleblowers’ Protecti on Act (WPA), MCL 15.361 et seq ., after she raised concerns about a potentially improper transfer of county funds from the county’s ambulance account and regarding the ambulance service provided to the county. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). The court, Peter J. Wadel, J., denied the motion, and the jury returned a verdict in plaintiff’s fa vor. Defendants appealed. The Court of Appeals, Z AHRA , P.J. (W HITBECK , J., concurring and M. J. K ELLY , J., dissenting), in an unpublished opinion, issued October 15, 2009 (Docket No. 282921), reversed and remanded for entry of an order granting summary disposition to defendants. In lieu of granting leave to appeal, the Supreme Court reversed the judgm ent of the Court of Appeals and remanded the case to that Court for consideration of an additional argument that had been raised by defendants. 486 Mich 938 (2010). On remand, the Court of Appeals, M URRAY , P.J., and H OEKSTRA , J. (S TEPHENS , J., dissenting), in an unpublished opinion per cu riam, issued August 25, 2011 (Docket No. 282921), held that plaintiff had failed to establish a genui ne issue of material fa ct regarding the causation element of her claim and again reversed the tr ial court’s order denyi ng defendants’ motion for summary disposition. The Supreme Court granted plaintiff’s application for leave to appeal. 491 Mich 874 (2012). In an opinion by Justice C AVANAGH , joined by Chief Justice Y OUNG and Justices M ARKMAN and M ARY B ETH K ELLY , the Supreme Court held : Judicial review of plaintiff’s claim under the WPA, which questioned defendants’ proffered reason for the elimination of her pos ition by asserting that the proffered reason for termination was a pretext for re taliation, violated neither th e business-judgment rule nor the separation of powers given that review of the cl aim merely required exam ination of whether the county board had acted outside its constitutiona lly and legislatively granted powers and that plaintiff did not question whet her the purportedly economic deci sion was wise, shrewd, prudent, or competent. 1. Under the WPA, a plaint iff may establish a prima facie case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2) the defendant took an Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack

This syllabus constitutes no part of th e opinion of the Court but has been prepared by the Reporter of Decision s for the convenience of the reader. Reporter of Decisions: John O. Juroszekadverse employment action against the plaintiff, and (3) a causal connect ion existed between the protected activity and the adverse employment action. In this case, only the causal connection was at issue. Absent direct evidence of retalia tion, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal link existed between the whistleblowing act and the employer’s adverse em ployment action. A pl aintiff may present a rebuttable prima facie case on the basis of proofs from which a fact-finde r could infer that the plaintiff was the victim of unlaw ful retaliation. Something mo re than a temporal connection between protected conduct and an adverse empl oyment action is required to show causation when retaliation is claimed. In this case, when vi ewed in the light most fa vorable to plaintiff, the facts supported a reasonable inference that pl aintiff was the victim of unlawful retaliation

. Specifically, during a 12-day period when plainti ff engaged in protected activity by raising the concerns, her position went from fully funded to nonexistent; from that evidence, a rational factfinder could infer that the board had decided to fund plaintiff’s position until she voiced her complaints. Further, plaintiff ma de her complaints to the board that ultimately eliminated her position. It is reasonable to infer that the more knowledge the employer has of the protected activity, the greater the possibili ty of an impermissible motivation for the adverse employment action. Additionally, the board remedied its prio r and potentially unlawful action after plaintiff voiced her concerns, suggesting that because of pl aintiff’s complaints, the board was forced to do something it would not otherwise have done. Fr om that evidence, a reasonable inference could be drawn that the board was motivated to eliminate plaintiff’s position because of her complaints. 2. Once a plaintiff establishes a prima faci e case, a presumption of retaliation arises because an employer’s adverse action is more lik ely than not based on the consideration of impermissible factors if the employer cannot othe rwise justify the action. The employer might be entitled to summary disposi tion, however, if it offers a legitim ate reason for its action and the plaintiff fails to show that a reasonable fact-finde r could still conclude that his or her protected activity was a motivating factor for the employer’s adverse action. A plaintiff must not merely raise a triable issue that the employer’s proffere d reason was pretextual, but must raise the issue that it was pretext for unlawful retaliation. In this case, defendants claimed that plaintiff’s position was eliminated because of economic necessity and that plaintiff c ould not challenge that justification because any challe nge would either impermissibly question defendants’ business judgment or unconstitutionally require judicial review of a legislative body’s policy decision, violating the separation of powers. A plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts (1) by showi ng that the reasons had no basis in fact, (2) if they have a basis in fact, by showing that th ey were not the actual factors motivating the decision, or (3) if they were factors, by showing th at they were jointly in sufficient to justify the decision. The soundness of an employer’s busin ess judgment, however, may not be questioned as a means of showing pretext. In this case , plaintiff did not ques tion defendants’ business judgment. Rather, plaintiff assert ed that defendants’ proffered jus tification had no basis in fact, or at least was not the actual factor motivatin g the decision, when she offered evidence that, when viewed in the light most favorable to her, suggested th at the county was not facing a budget crisis. Further, the WPA expressly waiv es legislative immunity, making the act fully applicable to public employers. Thus, the ques tion whether the board lawfully exercised its authority when it eliminated plaintiff’s position wa s subject to judicial re view, and that review did not violate the separation of po wers. Plaintiff presented suffici ent evidence to conclude thatreasonable minds could differ regarding the board’s true motivation for eliminating her position and raised a genuine issue of ma terial fact regarding causation. Defendants were not entitled to summary disposition. Judgment of the Court of Appeals reversed, tr ial court’s denial of defendants’ motion for summary disposition reinstated, and trial court order entering judgment in favor of plaintiff reinstated.

Justice Z AHRA took no part in the decision of this case because he was on the Court of Appeals panel that issu ed the initial opinion.

Justice M C C ORMACK took no part in the decision of this case.

©2013 State of MichiganFILED FEBRUARY 8, 2013

S T A T E O F M I C H I G A N

SUPREME COURT

CHERYL DEBANO-GRIFFIN, Plaintiff-Appellant,

v No. 143841

LAKE COUNTY a nd LAKE COUNTY BOARD OF COMMISSIONERS, Defendants-Appellees.

BEFORE THE ENTIRE BENCH (except Z AHRA and M C C ORMACK , JJ.)

C AVANAGH , J. This case requires us to determine whet her plaintiff, Cheryl Debano-Griffin, provided sufficient evid ence to create a genuine issue of material fact regarding the

causation element of her claim under the Wh istleblowers’ Protection Act (WPA), MCL 15.361, et seq . We hold that plaintiff presented evidence that show ed more than a temporal relationship between the protected activity and de fendants’ adverse employment

action. See West v Gen Motors Corp , 469 Mich 177; 665 NW 2d 468 (2003). Also, because plaintiff must rely on circumstantial ev idence to overcome defendants’ motion Michigan Supreme Court Lansing, Michigan 

# Opinion Chief Justice: Robert P. Young, Jr. Justices: Michael F. Cavanagh Stephen J. Markman Mary Beth Kelly Brian K. Zahra Bridget M. McCormack2 for summary disposition, th e framework set forth in McDonnell Dougla s Corp v Green , 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973), is applicable. In this case, we hold that plaintiff provided suffici ent evidence to establish her prima facie case of unlawful

retaliation under the WPA. Additionally, we must determine whethe r plaintiff’s claim, which questions defendants’ proffered reason for the elimina tion of her position by asserting that the proffered reason was a pretext for retaliation, violates either the business-judgment rule,

see Hazle v Ford Motor Co , 464 Mich 456, 475-476; 62 8 NW2d 515 (2001), or the separation of powers. We hold that it does not violate the separati on of powers because judicial review of plaintiff’s statutory claim merely examin es whether the county board

of commissioners acted outside its constitu tionally and legislatively granted powers. Additionally, plaintiff’s challenge to defe ndants’ budgetary justifications does not implicate the business-judgment rule becaus e plaintiff does not question whether the economic decision was “‘wise, shrewd , prudent, or competent.’” See id . at 476 (citation omitted). Moreover, in addition to adequately rebutting defenda nts’ facially legitimate budgetary grounds for elimin ating plaintiff’s position, pl aintiff presented sufficient

evidence to conclude that reasonable mind s could differ regarding defendants’ true motivations for eliminating her position. Ther efore, plaintiff created a triable issue of

fact and defendants were not entitled to summa ry disposition. Acco rdingly, we reverse the judgment of the Cour t of Appeals and reinstate the tria l court’s denial of defendants’ motion for summary disposition.3 I. FACTS AND PROCEEDINGS In 1998, plaintiff began working as the dire ctor of Lake County ’s 911 department. Before her hiring, county voters had passe d a millage for the purpose of operating Lake County’s ambulance service. La ke County then contracted w ith Life EMS to provide two ambulances a day to service the county. In 2002, plaintiff discovere d that Life EMS was using one of the ambulances to transport re sidents of other counties in nonemergency circumstances. She informed the county boa rd of commissioners (hereinafter “the board”) and other county officials that Life EMS was in breach of the contract, which posed a threat to the health a nd safety of county residents. Additionally, on Septem ber 28, 2004, as authorized by the board, $50,000 was

transferred from the ambulance account to a 911 account to use for a “mapping project.” Plaintiff testified that on November 1, 2004, during a mapping meeting, plaintiff objected to the transfer, claiming that it violated the millage proposal and explaining that she had obtained a grant to cover the cost of the mapping project. She further stated that she had previously made similar objections regardin g the transfer to the board and at a county finance committee meeting. Later, the board vo ted to return the fu nds to the ambulance account, which occurred on November 12, 2004. Also , on November 10, 2004, the board voted to merge two county em ployment positions. As a resu lt of the merger, plaintiff’s position was eliminated. Plaintiff received official notice of her termination on December 22, 2004, whic h explained that her position was eliminated because of “budget problems” and that the county was “forced to take cost cutting measures in order to4 balance its budget.” However, according to the proposed county budget as of October 29, 2004, the position of 911 director was fully funded at that time. In January 2005, plaintiff filed a whistleblower claim under MCL 15.362, 1 asserting that she was terminated as result of her complaints regard ing the funds transfer

and Life EMS’s ambulance service. Defend ants filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing th at plaintiff had not met her burden of establishing a prima facie case under the WP A because plaintiff did not engage in “protected activity” and had not provided suffi cient evidence to su pport causation. The

trial court denied defendants’ mo tion, and the jury returned a ve rdict in plaintiff’s favor. Defendants appealed, and the Court of Appeals, holding that plaintiff was not engaged in protected activity under the WPA, reversed th e trial court’s denial of defendants’ motion

and remanded the case to the trial court fo r the entry of an order granting summary disposition to defendants. Debano-Griffin v Lake Co , unpublished opinion per curiam of the Court of Appeals, issued Octobe r 15, 2009 (Docke t No. 282921).

1 MCL 15.362 states: An employer shall not discharge, th reaten, 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 employe e, reports or is about to report, verbally or in writing, a violation or a suspecte d violation of a law or regulation or rule promul gated pursuant to law of this state, a political subdivision of this state, or the Un ited States to a public body, unless the employee knows that the report is fa lse, or because an employee is requested by a public body to participate in an inve stigation, hearing, or inquiry held by that public body, or a court action.5 Plaintiff sought leave to appeal, and, in lieu of granting leave to appeal, this Court reversed the judgment of the Court of Appeals and remanded the case to that Court for consideration of the argumen t raised by defendants but not addressed by the Court of Appeals during its initial review of the case. Debano-Griffin v Lake Co , 486 Mich 938 (2010). On remand, the Court of Appeals held that plaintiff had failed to establish a genuine issue of material fact on the causatio n element of her claim, relying primarily on

West , and again reversed the trial court’s or der denying defendants ’ motion for summary disposition. Debano-Griffin v La ke Co (On Remand) , unpublished opinion per curiam of the Court of Appeals, issu ed August 25, 2011 (Docke t No. 282921). We granted plaintiff’s application for leave to appeal to consider “(1) whether the plaintiff established

a causal connection between he r protected activity and the adverse employment action”

and (2) whether a whistleblower may challenge an adverse employment decision, which is claimed to be a matter of business judgment that was based on a fiscal or budgetary re ason, as a mere pretext over the defendants’ assertion that the separati on of powers principle prevents the judiciary from examining the budgetary decisions of a legislative body. [ Debano-Griffin v Lake Co , 491 Mich 874 (2012).]

II. STANDARD OF REVIEW

We review de novo a trial court’s ruli ng on a motion for summary disposition. Chandler v Dowell Schlumberger Inc , 456 Mich 395, 397; 572 NW2d 210 (1998). Because defendants focused their argumen t supporting their motion for summary disposition on MCR 2.116( C)(10), we must ask whether a genuine issue of material fact exists when, viewing th e evidence in a light most favorab le to the nonmoving party, the “record which might be developed . . . woul d leave open an issue upon which reasonable6 minds might differ.” Shallal v Catholic Soc ial Servs of Wayne Co , 455 Mich 604, 609; 566 NW2d 571 (1997) (citations and quotati on marks omitted). Likewise, this Court reviews de novo constitutional questions, incl uding those concerning the separation of

powers. People v Garza , 469 Mich 431, 433; 670 NW2d 662 (2003).

III. ANALYSIS Under the WPA, a plaintiff may establis h a prima facie case by showing that (1) the plaintiff was engaged in protected activ ity as defined by the act, (2) the defendant took an adverse employment action against the plaintiff, and (3 ) “a causal connection exists between the protected activity” and the adverse employment action. Chandler , 456

Mich at 399. 2 However, the only issue that we must decide in this case is causation. Because whistleblower claims are analogous to other antiretaliation employment claims brought under employment di scrimination statutes prohib iting various discriminatory animuses, they “should receive treatment unde r the standards of proof of those analogous [claims].” Shallal , 455 Mich at 617. Sp ecifically, this case requires application of the burden-shifting framework set forth in McDonnell Douglas . See, e.g., Hazle , 464 Mich at 462-466 (applying the McDonnell Douglas framework in the context of alleged discrimination in employment).

Absent direct evidence of re taliation, a plaintiff must rely on indirect evidence of his or her employer’s unlawful motivations to show that a causal li nk exists between the

2 This Court has previously determined that plaintiff wa s engaged in a “protected activity,” see Debano-Griffin , 486 Mich 938, and there is no dispute that an “adverse employment action” was taken against plaintiff.7 whistleblowing act and the employer’s adverse employment action. See Hazle , 464 Mich at 462-463. A plaintiff may “‘present a rebu ttable prima facie case on the basis of proofs

from which a factfinder could infer that the plaintiff was the victim of unlawful [retaliation].’” Id . at 462, quoting DeBrow v Century 21 Gr eat Lakes, Inc (After Remand) , 463 Mich 534, 537-538; 620 NW2d 836 (2001). Once a plaintiff establishes a prima facie case, “a presumption of [retaliat ion] arises” because an employer’s adverse action is “more likely than not based on the c onsideration of imperm issible factors”—for example, here, plaintiff’s protected activity under the WPA—if the employer cannot otherwise justify the adverse employment action. Hazle , 464 Mich at 463 (citations and quotation marks omitted). The employer, however, may be entitled to summary disposition if it offers a legitimate reason for its action a nd the plaintiff fails to show that a reasonable fact-finder could still conclude that the pl aintiff’s protected activity was a “motivating factor” for the employer’s adverse action. Id . at 464-465. “[A] plaintiff must not merely raise a triable issue that the employer’s pr offered reason was pretextual, but that it was a pretext for [unlawful retaliation].” Id . at 465-466 (citations and quo tation marks omitted). Against this backdrop, we must now de termine whether plaintiff established a prima facie case of unlawful retaliation and, if so, to what extent plaintiff may argue that defendants’ budgetary justification for the e limination of her position was pretextual.

A. PLAINTIFF’S PRIMA FACIE CASE We hold that the Court of Appeals erred when it misapplied West to conclude that plaintiff had failed to establish her prima fa cie case because she did not create a genuine8 issue of material fact regardin g causation under the WPA. In West , 469 Mich at 186, a majority of this Court stated that “a temporal relations hip, standing alone, does not

demonstrate a causal connection between the protected activity and any adverse employment action.” “Something more than a temporal connection between protected conduct and an adverse employment action is required to show causation” when

retaliation is claimed. Id

. In the present case, plaintiff does not re ly solely on the fact that defendants eliminated her position after she engaged in protected activity. To the contrary, plaintiff presented evidence of a causal link that s hows more than a “coin cidence in time.” Id. at 186. Indeed, during a 12-day period when plaintiff ma de various complaints regarding

the funds transfer and ambulance services, plaintiff’s positi on went from fully funded to nonexistent. From this, a rational juror coul d infer that the board had already decided to fund plaintiff’s position until she pub licly voiced her complaints. See Hazle , 464 Mich at 462. This is especially so because one reasonable conclusion is that the county’s

financial situation could not have deteriorat ed in 12 days to the point that it had to consider extreme cost-saving meas ures at that particular time. In addition, the fact that the same en tity that made the d ecision to eliminate plaintiff’s position, the board, was also the direct recipien t of plaintiff’s complaints strengthens the causal link betw een plaintiff’s protected activity and defendants’ adverse

action because it is reasonable to infer that the more knowledge the employer has of the plaintiff’s protected activity, the greater the possibility of an imperm issible motivation. Similarly, it is reasonable to conclude that the more an employer is affected by the plaintiff’s whistleblowing activity, the str onger the causal link becomes between the9 protected activity and the employ er’s adverse employment action. In this case, the board heeded plaintiff’s advice and returned the transferred fu nds back into the ambulance

fund. The fact that the bo ard remedied its prior and potentially unlawful action lends support to plaintiff’s position that defendants, because of plaintiff’s complaints, were

forced to do somethin g that they would not have otherw ise done and, thus, a reasonable inference may be drawn that the board was motivated to eliminat e plaintiff’s position because of her complaints. 3

When viewed in a li ght most favorable to plainti ff, the foregoing facts support a reasonable inference that plaintiff was th e victim of unlawfu l retaliation, which establishes her prima facie case and gives rise to a rebuttable presumption that defendants unlawfully retaliated against plaintiff by elimin ating her position. The next step in the analysis requires that we consider the exte nt to which plaintiff may rebut defendants’ facially legitimate reason for its adverse ac tion—that the board eliminated plaintiff’s position because of the county’s impending financial crisis.

3 In West , 469 Mich at 185, a majority of this Co urt noted that “[t]he evidence does not show that either of the supervisors, whom plaintiff allegedly info rmed about the call to the police, viewed the call as a matter of an y consequence. Nor was either supervisor involved in the decision to discharge plaintiff.” I con tinue to agree with Justice M ARILYN K ELLY ’s West dissent; however, the foregoing statem ent explains that when the same individual (or in this case th e board) is the recipient of or affected by the plaintiff’s whistleblowing activity, the inference that th e employer unlawfully retaliated against the plaintiff becomes stronger.10 B. PLAINTIFF’S ABILITY TO SHOW PRETEXT As previously stated, defendants may re but the presumption of retaliation and, thus, are entitled to summary disposition if th ey offer a legitimate justification for the elimination of plaintiff’s positi on unless plaintiff can show th at defendants’ justification was a pretext for unlawful retaliation. De fendants claimed that the board eliminated plaintiff’s position out of economic necessity and, in s upport of their motion for summary disposition, offered an audit report that, acco rding to defendants, showed that the county was suffering financial strain and required budget cuts. Defendants also offered the affidavit of Shelly Myers, the Lake County Clerk and Register of Deeds, which stated that the county was facing “sev ere financial difficulties.” Plaintiff responded, claiming that defendants’ budgetary justification wa s pretextual and, instead, the board’s motivating factor for the elim ination of her position was puni shment for her complaints about the board’s allegedly illegal transfer of funds from the ambulance fund. Defendants argue that plaintiff canno t challenge defendants’ budgetary justification because any ch allenge would either imperm issibly question defendants’ “business judgment” or unconstitu tionally require judicial revi ew of a legislative body’s policy decision, violating the sepa ration of powers. We disagree.

1. BUSINESS-JUDGMENT RULE Regarding whether plaintiff may question defendants’ “business judgment,” we

stated in Hazle , 464 Mich at 476, that a “plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since th e factual dispute at issue is whether discriminatory animus motivated the empl oyer, not whether the employer is wise,11 shrewd, prudent, or competent. ” (Citation and quotation mark s omitted.) And similarly,

in Dubey v Stroh Brewery Co , 185 Mich App 561, 565-566 ; 462 NW2d 758 (1990), the Court of Appeals held that [t]here are three ways a plaintiff can establish that a defendant’s stated legitimate, nondiscriminatory reasons are pretexts: (1) by showing the reasons had no basis in fact, (2) if they have a basis in fact, by showing that they were not the actual factors motivati ng the decision, or (3) if they were factors, by showing that they were jointly insufficien t to justify the decision. The soundness of an empl oyer’s business judgment, however, may not be questioned as a me ans of showing pretext. In this case, plaintiff did not questi on whether the decisi on to eliminate her position was “sound” or assert that it ine ffectively combated the county’s alleged financial crisis. Rather, plaintiff asserted that defendants’ proffered justification was

false or had no “basis in fact.” Id . at 565. In other words, plaintiff questioned whether

defendants’ decision was in fact an economic decision by questioning the propriety of the county’s audit report and the credibility of Myers. Specif ically, plaintiff identified financial figures in the audit report that suggested that the county was not facing a budgetary crisis. Also, plaintiff discounted Myers’s credibility by offering the minutes of a September 2004 county personnel committe e meeting during which several county officials, including Myers, requested a pay raise in 2005. Because defendants relied on Myers’s representation of the county’s financia l status to show that the board based its decision to eliminate plaintiff’s position on legitimate budgetary concerns, arguably Myers’s credibility was in issue, presenting a question for th e trier of fact with regard to whether defendants actually offe red a legitimate justification for the board’s decision.

See Brown v Pointer , 390 Mich 346, 354; 212 NW2d 201 (1973) (stating that “where the12 truth of a material factual assertion of a movant’s affidavit depends on the affiant’s credibility, there inheres a genuine issue to be decided at a trial by the trier of fact and a motion for summary judgment cannot be granted”). Moreover, even if defenda nts’ position that the county was facing economic hardship had a “basis in fact ,” plaintiff nonetheless provid ed evidence to show that defendants’ budgetary justification was “ not the actual fact or[] motivating the

decision . . . .” See Dubey , 185 Mich App at 565-566. Fo r example, plaintiff provided the deposition testimony of Jame s Martin, who worked at Lake County Central Dispatch. He testified that during 2005 and 2006 defendants hired ad ditional full-time employees. Plaintiff also provided the county’s budget worksheet for 2005, wh ich, in the budgetrequest column, indicated that several 911 di spatchers would be given raises. Viewing this evidence in the light most favorable to plaintiff, it is reas onable to conclude that even if the county was facing economic difficultie s, those difficulties were not the board’s “motivating factor” when it elimin ated plaintiff’s position. See Hazle , 464 Mich at 465. Thus, plaintiff has successfully establis hed a genuine issue of material fact regarding the causation element of her whistle blower claim because, when viewed in the light most favorable to plaintiff, reasonabl e minds may differ with regard to whether defendants’ facially legitimate economic motivation was based in truth or whether plaintiff’s additional evidence showed that the motivating fa ctor for the board’s adverse

decision was unlawful retaliation.13 2. SEPARATION OF POWERS Equally unpersuasive is defendants’ alternat ive argument: that despite the fact that plaintiff might have offered sufficient evidence to create a triable issue of fact regarding causation, plaintiff may not question the board’s decision to eliminate her position because it would require judicial review of a legislative policy determination, violating the separation of powers. A lthough defendants’ argument conf lates legislative immunity with separation of powers, we hold that ne ither doctrine precludes plaintiff’s claim or ability to challenge defendants’ budgetary justification for eliminating plaintiff’s position as a pretext for unlawful retaliation under the WPA. Defendants argue that the board is a legi slative body and the board’s elimination of plaintiff’s position was a legislative act. Regarding the latter assertion, defendants cite Bogan v Scott-Harris , 523 US 44; 118 S Ct 966; 140 L Ed 2d 79 (1998). In Bogan , the United States Supreme Court held that the termination of the plaintiff’s position was legislative in nature because the discretionary policy decision “reach[ed] well beyond the particular occupant of the office”; thus, th e defendants, local city legislators, were entitled to immunity. Id . at 49-51, 55-56. Bogan further reasoned that the determination of whether an action is legisl ative “turns on the nature of the act, rather than on the motive or intent of the official performing it.” Id . at 54. Indeed, this Court has reached a similar conclusion regarding executive immunity. In American Transmissions, Inc v Attorney General , 454 Mich 135, 143; 560 NW2d 50 (1997), we stated that “[t]he Legislature’s grant of immunity . . . is writte n with utter clarity. We need not reach the14 concern that a malevolent-heart exception mi ght not be workable, since the Legislature has provided no such test.” 4 However, defendants’ argument ignores the fact that the WPA expressly waives legislative immunity, making the act fully applicable to public employers. In Anzaldua v

Band , 457 Mich 530, 551-552; 5 78 NW2d 306 (1998), we stated that “[t]he Legislature expressly applied the act to the state by includ ing the state and its political subdivisions in the definition of ‘employer.’ See MCL 15.361(b); MSA 17.428(1)(b). Because the state is expressly named in the act, it is w ithin the act’s coverage.” And notably, Anzaldua explained that the waiver is consistent with th e design of the WPA to “protect the public from unlawful conduct by corporations and g overnment bodies . . . by removing barriers to the reporting of violati ons of law by employees.” Id. at 533. Thus, plaintiff’s claim is not barred by legislative immunity. 5 Considering the merits of defendants’ separation-of-powers argument, the Michigan Constitution states that “[t]he powe rs of government are divided into three branches: legislative, executive and judicial. No person exercising po wers of one branch shall exercise powers properly belonging to another branch except as expressly provided

4 See MCL 691.1407(5), which states that “[ a] judge, a legislator, and the elective or highest appointive execu tive official of all levels of government are immune from tort liability for injuries to persons or damages to property if he or she is acting within the scope of his or her judicial, legi slative, or exec utive authority.”

5 While Bogan and MCL 691.1407(5) involv e the extent to which an individual legislator may be immune from liability, this case is arguably distinguisha ble because only the liability of the board as a legislative body is at issue. Thus, we decline to address whether the naming of an individual board member as a defendant would have changed the outcome of this case.15 in this constitution.” Const 196 3, art 3, § 2. The authority of local governments derives from article 7 of Michigan’s 1963 Constitutio n and from the Legislature. See Const 1963, art 7, § 1; see, also, City of Lansing v Edwa rd Rose Realty, Inc , 442 Mich 626, 632 n 5; 502 NW2d 638 (1993). Th e Constitution states that c ounty governments “shall have legislative, administrative an d such other powers and duties as provided by law .” Const 1963, art 7, § 8 (emphasis added). 6 And the Legislature has delegated to county government the authority to “[e]stablish ru les and regulations in reference to the management of the interest and business con cerns of the county as the board considers necessary and proper in a ll matters not especially provided for in this act or under the laws of this state .” MCL 46.11(m) (e mphasis added). In the present case, despite the board’s authority to make budgetary decisions, judicial review of plaintiff’s whistleblow er claim, which asserts that the board’s budgetary justification for her termination wa s pretextual, does not violate the separation of powers. We have held that [i]t is one of the necessary and fundam ental rules of law that the judicial power cannot interfere with the legitimate discretion of any other department of government. So long as they do no illegal act , and are doing business in the range of the powers committed to their exercise, no outside authority can intermeddle with them . . . . [ Detroit v Wayne Co Circuit Judge , 79 Mich 384, 387; 44 NW 62 2 (1890) (emphasis added).] See, also, Veldman v Grand Rapids , 275 Mich 100, 113; 265 NW 790 (1936) (explaining that a court’s inquiry into municipal affairs is limited to situations in which there exists “a

6 Const 1963, art 7, § 8 refers to county boards of supervisor s, but Const 1963, art 7, § 2 permits “the organization of c ounty government in form diffe rent from that set forth in this constitution . . . .”16 malicious intent, capricious action or corrupt conduct, something which shows the action of the body whose acts are complained of did not arise from an exercise of judgment and discretion vested by law in them”). As previ ously stated, plaintiff does not argue that the board’s decision to eliminate her position was a product of unsound or unwise judgment. Rather, plaintiff argues that the board’s decision was unlawful under the WPA and, thus, its decision fell outside the otherwise legitim ate discretion afforded to the board by the Constitution and the Legislature. Thus, the trial court, by merely providing plaintiff a forum in which to litigate her statutory claim under the WPA, did not infringe the board’s legitimate exercise of it s judgment and discretion. Accordingly, given that the WPA expressl y waives legislativ e immunity, we hold that the question whether the board lawfully exercised its authority when it eliminated plaintiff’s position is subject to judicial re view. To hold otherw ise would essentially allow defendants an impenetrable defense beca use plaintiff lacked direct evidence of

retaliation and would render futile the burden-shifti ng framework of McDonnell Douglas

. IV. CONCLUSION In summary, we hold that the McDonnell Douglas framework applies to plaintiff’s claim under the WPA because plaintiff lack ed direct proof of a causal connection showing that the board possesse d a retaliatory motivation when it eliminated her position. Additionally, the Court of Appeal s erred when it concluded that plaintiff failed to show more than a temporal relationship betwee n the protected activity and the adverse employment action. In this case, plaintiff provided additional evidence to establish her17 prima facie case—particularly, the fact that plaintiff’s position be came unfunded within 12 days, which overlapped with when plaint iff engaged in the protected activity. Lastly, we hold that plaintiff successfully rebutted defendants’ proffered budgetary justification for the board’s adverse decision. And plaintiff’s ab ility to challenge the motives of the board did not call into que stion the board’s business judgment because plaintiff’s argument was that th e budgetary decision had no basis in fact, not that its decision was unwise. Similarly, the trial co urt, by entertaining plaintiff’s argument, did not unconstitutionally infringe on the board’s legislative func tion in violation of the separation of powers. Thus, because plaintiff presented sufficien t evidence to conclude that reasonable minds could differ rega rding the board’s true motivati on for eliminating plaintiff’s position, plaintiff raised a genuine issue of material fact regarding causation and defendants were not entitled to summary dis position. We reverse the judgment of the Court of Appeals, reinstate the trial court’ s denial of defendants’ motion for summary disposition, and reinstate the trial court’s orde r entering judgment in favor of plaintiff.

Michael F. Cavanagh Robert P. Young, Jr. Stephen J. Markman Mary Beth Kelly

Z AHRA , J., took no part in the decision of this case becaus e he was on the Court of Appeals panel that issued th e October 15, 2009, opinion.

M C C ORMACK , J., took no part in the decision of this case.