DEBANO-GRIFFIN v LAKE COUNTY 

Docket No. 143841. Argued October 10, 2012 (Calendar No. 6). Decided February 8, 2013. 

 Cheryl Debano-Griffin brought an action in the Lake Circuit Court against Lake County 

and the Lake County Board of Commissioners alleging, in part, that she had been terminated 

from her position as the director of Lake County’s 911 department in violation of the 

Whistleblowers’ Protection 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 favor. Defendants appealed. The Court of Appeals, 

ZAHRA, P.J. (WHITBECK, J., concurring and M. J. KELLY, J., dissenting), in an unpublished 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 judgment 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, MURRAY, P.J., and HOEKSTRA, J. (STEPHENS, J., 

dissenting), in an unpublished opinion per curiam, issued August 25, 2011 (Docket No. 282921), 

held that plaintiff had failed to establish a genuine issue of material fact regarding the causation 

element of her claim and again reversed the trial court’s order denying 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 CAVANAGH, joined by Chief Justice YOUNG and Justices 

MARKMAN and MARY BETH KELLY, the Supreme Court held: 

 Judicial review of plaintiff’s claim under the WPA, which questioned defendants’ 

proffered reason for the elimination of her position by asserting that the proffered reason for 

termination was a pretext for retaliation, violated neither the business-judgment rule nor the 

separation of powers given that review of the claim merely required examination of whether the 

county board had acted outside its constitutionally and legislatively granted powers and that 

plaintiff did not question whether the purportedly economic decision was wise, shrewd, prudent, 

or competent. 

 1. Under the WPA, a plaintiff 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 the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

Reporter of Decisions: 

John O. Juroszek 
adverse employment action against the plaintiff, and (3) a causal connection existed between the 

protected activity and the adverse employment action. In this case, only the causal connection 

was at issue. Absent direct evidence of retaliation, 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 employment action. A plaintiff may present a 

rebuttable prima facie case on the basis of proofs from which a fact-finder could infer that the 

plaintiff was the victim of unlawful retaliation. Something more than a temporal connection 

between protected conduct and an adverse employment action is required to show causation 

when retaliation is claimed. In this case, when viewed in the light most favorable to plaintiff, the 

facts supported a reasonable inference that plaintiff was the victim of unlawful retaliation. 

Specifically, during a 12-day period when plaintiff 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 made 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 possibility of an impermissible motivation for the adverse employment 

action. Additionally, the board remedied its prior and potentially unlawful action after plaintiff 

voiced her concerns, suggesting that because of plaintiff’s complaints, the board was forced to do 

something it would not otherwise have done. From 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 facie case, a presumption of retaliation arises 

because an employer’s adverse action is more likely than not based on the consideration of 

impermissible factors if the employer cannot otherwise justify the action. The employer might 

be entitled to summary disposition, however, if it offers a legitimate reason for its action and the 

plaintiff fails to show that a reasonable fact-finder 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 proffered 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 could not challenge that 

justification because any challenge 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 showing that the reasons had no basis in fact, (2) if 

they have a basis in fact, by showing that they were not the actual factors motivating the 

decision, or (3) if they were factors, by showing that they were jointly insufficient to justify the 

decision. The soundness of an employer’s business judgment, however, may not be questioned 

as a means of showing pretext. In this case, plaintiff did not question defendants’ business 

judgment. Rather, plaintiff asserted that defendants’ proffered justification had no basis in fact, 

or at least was not the actual factor motivating the decision, when she offered evidence that, 

when viewed in the light most favorable to her, suggested that the county was not facing a 

budget crisis. Further, the WPA expressly waives legislative immunity, making the act fully 

applicable to public employers. Thus, the question whether the board lawfully exercised its 

authority when it eliminated plaintiff’s position was subject to judicial review, and that review 

did not violate the separation of powers. Plaintiff presented sufficient evidence to conclude that 
reasonable minds could differ regarding the board’s true motivation for eliminating her position 

and raised a genuine issue of material fact regarding causation. Defendants were not entitled to 

summary disposition. 

 Judgment of the Court of Appeals reversed, trial court’s denial of defendants’ motion for 

summary disposition reinstated, and trial court order entering judgment in favor of plaintiff 

reinstated. 

 Justice ZAHRA took no part in the decision of this case because he was on the Court of 

Appeals panel that issued the initial opinion. 

 Justice MCCORMACK took no part in the decision of this case. 

©2013 State of Michigan 
FILED 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 and LAKE COUNTY 

BOARD OF COMMISSIONERS, 

 Defendants-Appellees. 

BEFORE THE ENTIRE BENCH (except ZAHRA and MCCORMACK, JJ.) 

CAVANAGH, J. 

This case requires us to determine whether plaintiff, Cheryl Debano-Griffin, 

provided sufficient evidence to create a genuine issue of material fact regarding the 

causation element of her claim under the Whistleblowers’ Protection Act (WPA), MCL 

15.361, et seq. We hold that plaintiff presented evidence that showed more than a 

temporal relationship between the protected activity and defendants’ adverse employment 

action. See West v Gen Motors Corp, 469 Mich 177; 665 NW2d 468 (2003). Also, 

because plaintiff must rely on circumstantial evidence 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. McCormack 
2

for summary disposition, the framework set forth in McDonnell Douglas 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 sufficient evidence to establish her prima facie case of unlawful 

retaliation under the WPA. 

Additionally, we must determine whether plaintiff’s claim, which questions 

defendants’ proffered reason for the elimination 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; 628 NW2d 515 (2001), or the 

separation of powers. We hold that it does not violate the separation of powers because 

judicial review of plaintiff’s statutory claim merely examines whether the county board 

of commissioners acted outside its constitutionally and legislatively granted powers. 

Additionally, plaintiff’s challenge to defendants’ budgetary justifications does not 

implicate the business-judgment rule because 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 defendants’ facially legitimate 

budgetary grounds for eliminating plaintiff’s position, plaintiff presented sufficient 

evidence to conclude that reasonable minds could differ regarding defendants’ true 

motivations for eliminating her position. Therefore, plaintiff created a triable issue of 

fact and defendants were not entitled to summary disposition. Accordingly, we reverse 

the judgment of the Court of Appeals and reinstate the trial court’s denial of defendants’ 

motion for summary disposition. 
3

I. FACTS AND PROCEEDINGS 

In 1998, plaintiff began working as the director of Lake County’s 911 department. 

Before her hiring, county voters had passed a millage for the purpose of operating Lake 

County’s ambulance service. Lake County then contracted with Life EMS to provide two 

ambulances a day to service the county. In 2002, plaintiff discovered that Life EMS was 

using one of the ambulances to transport residents of other counties in nonemergency 

circumstances. She informed the county board 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 and safety of county residents. 

Additionally, on September 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 regarding the transfer to the board and at a county 

finance committee meeting. Later, the board voted to return the funds to the ambulance 

account, which occurred on November 12, 2004. Also, on November 10, 2004, the board 

voted to merge two county employment positions. As a result of the merger, plaintiff’s 

position was eliminated. Plaintiff received official notice of her termination on 

December 22, 2004, which explained that her position was eliminated because of “budget 

problems” and that the county was “forced to take cost cutting measures in order to 
4

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 regarding the funds transfer 

and Life EMS’s ambulance service. Defendants filed a motion for summary disposition 

under MCR 2.116(C)(8) and (10), arguing that plaintiff had not met her burden of 

establishing a prima facie case under the WPA because plaintiff did not engage in 

“protected activity” and had not provided sufficient evidence to support causation. The 

trial court denied defendants’ motion, and the jury returned a verdict in plaintiff’s favor. 

Defendants appealed, and the Court of Appeals, holding that plaintiff was not engaged in 

protected activity under the WPA, reversed the trial court’s denial of defendants’ motion 

and remanded the case to the trial court for 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 October 15, 2009 (Docket No. 282921). 

 

1

 MCL 15.362 states: 

An employer shall not discharge, threaten, or otherwise discriminate 

against an employee regarding the employee’s compensation, terms, 

conditions, location, or privileges of employment because the employee, or 

a person acting on behalf of the employee, reports or is about to report, 

verbally or in writing, a violation or a suspected violation of a law or 

regulation or rule promulgated pursuant to law of this state, a political 

subdivision of this state, or the United States to a public body, unless the 

employee knows that the report is false, or because an employee is 

requested by a public body to participate in an investigation, hearing, or 

inquiry held by that public body, or a court action. 
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 argument 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 causation element of her claim, relying primarily on 

West, and again reversed the trial court’s order denying defendants’ motion for summary 

disposition. Debano-Griffin v Lake Co (On Remand), unpublished opinion per curiam of 

the Court of Appeals, issued August 25, 2011 (Docket No. 282921). We granted 

plaintiff’s application for leave to appeal to consider “(1) whether the plaintiff established 

a causal connection between her 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 reason, as a mere pretext over the 

defendants’ assertion that the separation 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 ruling on a motion for summary disposition. 

Chandler v Dowell Schlumberger Inc, 456 Mich 395, 397; 572 NW2d 210 (1998). 

Because defendants focused their argument 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 the evidence in a light most favorable to the nonmoving party, the 

“record which might be developed . . . would leave open an issue upon which reasonable 
6

minds might differ.” Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 609; 

566 NW2d 571 (1997) (citations and quotation marks omitted). Likewise, this Court 

reviews de novo constitutional questions, including 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 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 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 discrimination statutes prohibiting various discriminatory 

animuses, they “should receive treatment under the standards of proof of those analogous 

[claims].” Shallal, 455 Mich at 617. Specifically, 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 retaliation, a plaintiff must rely on indirect evidence of 

his or her employer’s unlawful motivations to show that a causal link exists between the 

 

2

 This Court has previously determined that plaintiff was 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 rebuttable 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 Great Lakes, Inc (After 

Remand), 463 Mich 534, 537-538; 620 NW2d 836 (2001). Once a plaintiff establishes a 

prima facie case, “a presumption of [retaliation] arises” because an employer’s adverse 

action is “more likely than not based on the consideration of impermissible 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 and the plaintiff fails to show that a reasonable fact-finder 

could still conclude that the plaintiff’s protected activity was a “motivating factor” for the 

employer’s adverse action. Id. at 464-465. “[A] plaintiff must not merely raise a triable 

issue that the employer’s proffered reason was pretextual, but that it was a pretext for 

[unlawful retaliation].” Id. at 465-466 (citations and quotation marks omitted). 

 Against this backdrop, we must now determine 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 elimination 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 facie case because she did not create a genuine 
8

issue of material fact regarding causation under the WPA. In West, 469 Mich at 186, a 

majority of this Court stated that “a temporal relationship, 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 rely 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 shows more than a “coincidence in time.” Id. at 

186. Indeed, during a 12-day period when plaintiff made various complaints regarding 

the funds transfer and ambulance services, plaintiff’s position went from fully funded to 

nonexistent. From this, a rational juror could infer that the board had already decided to 

fund plaintiff’s position until she publicly 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 deteriorated in 12 days to the point that it had to 

consider extreme cost-saving measures at that particular time. 

In addition, the fact that the same entity that made the decision to eliminate 

plaintiff’s position, the board, was also the direct recipient of plaintiff’s complaints 

strengthens the causal link between 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 impermissible motivation. 

Similarly, it is reasonable to conclude that the more an employer is affected by the 

plaintiff’s whistleblowing activity, the stronger the causal link becomes between the 
9

protected activity and the employer’s adverse employment action. In this case, the board 

heeded plaintiff’s advice and returned the transferred funds back into the ambulance 

fund. The fact that the board remedied its prior and potentially unlawful action lends 

support to plaintiff’s position that defendants, because of plaintiff’s complaints, were 

forced to do something that they would not have otherwise done and, thus, a reasonable 

inference may be drawn that the board was motivated to eliminate plaintiff’s position 

because of her complaints.3

 

When viewed in a light most favorable to plaintiff, the foregoing facts support a 

reasonable inference that plaintiff was the victim of unlawful retaliation, which 

establishes her prima facie case and gives rise to a rebuttable presumption that defendants 

unlawfully retaliated against plaintiff by eliminating her position. The next step in the 

analysis requires that we consider the extent to which plaintiff may rebut defendants’ 

facially legitimate reason for its adverse action—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 Court noted that “[t]he evidence does not 

show that either of the supervisors, whom plaintiff allegedly informed about the call to 

the police, viewed the call as a matter of any consequence. Nor was either supervisor 

involved in the decision to discharge plaintiff.” I continue to agree with Justice MARILYN 

KELLY’s West dissent; however, the foregoing statement explains that when the same 

individual (or in this case the board) is the recipient of or affected by the plaintiff’s 

whistleblowing activity, the inference that the employer unlawfully retaliated against the 

plaintiff becomes stronger. 
10

B. PLAINTIFF’S ABILITY TO SHOW PRETEXT 

As previously stated, defendants may rebut the presumption of retaliation and, 

thus, are entitled to summary disposition if they offer a legitimate justification for the 

elimination of plaintiff’s position unless plaintiff can show that defendants’ justification 

was a pretext for unlawful retaliation. Defendants claimed that the board eliminated 

plaintiff’s position out of economic necessity and, in support of their motion for summary 

disposition, offered an audit report that, according 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 “severe financial difficulties.” Plaintiff responded, claiming 

that defendants’ budgetary justification was pretextual and, instead, the board’s 

motivating factor for the elimination of her position was punishment for her complaints 

about the board’s allegedly illegal transfer of funds from the ambulance fund. 

Defendants argue that plaintiff cannot challenge defendants’ budgetary 

justification because any challenge would either impermissibly question defendants’ 

“business judgment” or unconstitutionally require judicial review of a legislative body’s 

policy decision, violating the separation 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 the factual dispute at issue is whether 

discriminatory animus motivated the employer, not whether the employer is wise, 
11

shrewd, prudent, or competent.” (Citation and quotation marks 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 motivating the decision, or (3) if they were 

factors, by showing that they were jointly insufficient to justify the 

decision. The soundness of an employer’s business judgment, however, 

may not be questioned as a means of showing pretext. 

In this case, plaintiff did not question whether the decision to eliminate her 

position was “sound” or assert that it ineffectively 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. Specifically, 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 committee 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 financial 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 the trier of fact with regard to 

whether defendants actually offered a legitimate justification for the board’s decision. 

See Brown v Pointer, 390 Mich 346, 354; 212 NW2d 201 (1973) (stating that “where the 
12

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 defendants’ position that the county was facing economic 

hardship had a “basis in fact,” plaintiff nonetheless provided evidence to show that 

defendants’ budgetary justification was “not the actual factor[] motivating the 

decision . . . .” See Dubey, 185 Mich App at 565-566. For example, plaintiff provided 

the deposition testimony of James Martin, who worked at Lake County Central Dispatch. 

He testified that during 2005 and 2006 defendants hired additional full-time employees. 

Plaintiff also provided the county’s budget worksheet for 2005, which, in the budgetrequest column, indicated that several 911 dispatchers would be given raises. Viewing 

this evidence in the light most favorable to plaintiff, it is reasonable to conclude that even 

if the county was facing economic difficulties, those difficulties were not the board’s 

“motivating factor” when it eliminated plaintiff’s position. See Hazle, 464 Mich at 465. 

Thus, plaintiff has successfully established a genuine issue of material fact 

regarding the causation element of her whistleblower claim because, when viewed in the 

light most favorable to plaintiff, reasonable 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 factor for the board’s adverse 

decision was unlawful retaliation. 
13

2. SEPARATION OF POWERS 

Equally unpersuasive is defendants’ alternative 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. Although defendants’ argument conflates legislative immunity 

with separation of powers, we hold that neither 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 legislative 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, the 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 legislative “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 written with utter clarity. We need not reach the 
14

concern that a malevolent-heart exception might 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; 578 NW2d 306 (1998), we stated that “[t]he Legislature 

expressly applied the act to the state by including 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 within the act’s coverage.” And notably, Anzaldua

explained that the waiver is consistent with the design of the WPA to “protect the public 

from unlawful conduct by corporations and government bodies . . . by removing barriers 

to the reporting of violations 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 powers of government are divided into three 

branches: legislative, executive and judicial. No person exercising powers 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 executive 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, legislative, or executive authority.” 

5

 While Bogan and MCL 691.1407(5) involve the extent to which an individual legislator 

may be immune from liability, this case is arguably distinguishable 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 1963, art 3, § 2. The authority of local governments derives 

from article 7 of Michigan’s 1963 Constitution and from the Legislature. See Const 

1963, art 7, § 1; see, also, City of Lansing v Edward Rose Realty, Inc, 442 Mich 626, 632 

n 5; 502 NW2d 638 (1993). The Constitution states that county governments “shall have 

legislative, administrative and 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 rules and regulations in reference to the 

management of the interest and business concerns of the county as the board considers 

necessary and proper in all matters not especially provided for in this act or under the 

laws of this state.” MCL 46.11(m) (emphasis added). 

In the present case, despite the board’s authority to make budgetary decisions, 

judicial review of plaintiff’s whistleblower claim, which asserts that the board’s 

budgetary justification for her termination was pretextual, does not violate the separation 

of powers. We have held that 

[i]t is one of the necessary and fundamental 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 622 (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 supervisors, but Const 1963, art 7, § 2 

permits “the organization of county government in form different 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 previously 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 legitimate 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 its judgment and discretion. 

Accordingly, given that the WPA expressly waives legislative immunity, we hold 

that the question whether the board lawfully exercised its authority when it eliminated 

plaintiff’s position is subject to judicial review. To hold otherwise would essentially 

allow defendants an impenetrable defense because plaintiff lacked direct evidence of 

retaliation and would render futile the burden-shifting 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 lacked direct proof of a causal connection 

showing that the board possessed a retaliatory motivation when it eliminated her position. 

Additionally, the Court of Appeals erred when it concluded that plaintiff failed to show 

more than a temporal relationship between the protected activity and the adverse 

employment action. In this case, plaintiff provided additional evidence to establish her 
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prima facie case—particularly, the fact that plaintiff’s position became unfunded within 

12 days, which overlapped with when plaintiff 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 ability to challenge the 

motives of the board did not call into question the board’s business judgment because 

plaintiff’s argument was that the budgetary decision had no basis in fact, not that its 

decision was unwise. Similarly, the trial court, by entertaining plaintiff’s argument, did 

not unconstitutionally infringe on the board’s legislative function in violation of the 

separation of powers. 

 Thus, because plaintiff presented sufficient evidence to conclude that reasonable 

minds could differ regarding the board’s true motivation for eliminating plaintiff’s 

position, plaintiff raised a genuine issue of material fact regarding causation and 

defendants were not entitled to summary disposition. 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 order entering judgment in favor of plaintiff. 

 Michael F. Cavanagh 

 Robert P. Young, Jr. 

 Stephen J. Markman 

 Mary Beth Kelly 

 ZAHRA, J., took no part in the decision of this case because he was on the Court of 

Appeals panel that issued the October 15, 2009, opinion. 

 MCCORMACK, J., took no part in the decision of this case.