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### STATE OF MICHIGAN

COURT OF APPEALS

NICK CIRENESE,

Plaintiff-Appellant, UNPUBLISHED May 16, 2017

v No. 331208 Oakland Circuit Court TORSION CONTROL PR ODUCTS, INC., TIM THANE, and DAN WALKER, LC No. 2015-146123-CD

Defendants-Appellees.

Before: S ERVITTO , P.J., and C AVANAGH and F ORT H OOD , JJ.

P ER C URIAM

. Plaintiff appeals as of right the trial court’s order granting defendants’ motion for summary disposition and denying plaintiff’s motion for summary disposition regarding his claim of retaliatory discharge in violation of the Whistleblowers’ Pr otection Act (WPA), MCL 15.361 et seq. We affirm.

I. STANDARD OF REVIEW

This Court reviews the decision of a trial court on a motion f or summary disposition de

novo. Grosse Pointe Law Firm, PC v Jaguar Land Rover North America, LLC , 317 Mich App 395, 399; ___ NW2d ___ (2016). Further:

In general, MCR 2.116(C)(10) provides for summary disposition when there is no genuine issue regarding any material fact and the m oving party is entitled to judgment or partial judgment as a matter of law. Amotion brought under MCR 2.116(C)(10) tests the f actual support for a party’s claim. A trial court may grant a mo tion for summary dis position under MCR 2.11 6(C)(10) if the pleadings, affidavits, and other documentary evidence, when vie wed in a light most favorable to the nonmovant, show that there is no genuine issue with respect to any material fact. A genuine issue of material fact exists when the record, giving the benefit of reasonabl e doubt to the opposing party, l eaves open an issue upon which reasonable minds might differ. The trial court is n ot permitted to assess credibility, weigh the evidence, or resolve factual disp utes, and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition under MCR 2.116(C)(10). A court m ay only consider substantivel y admissible evidence actually proffered relative to a motion for summary di sposition under-2- MCR 2.116(C)(10). [ Pioneer State Mut Ins Co v Dells , 301 Mich App 368, 377; 836 NW2d 257 (2013) (citations and quotation marks omitted).]

“The determination whether evidence establishes a prima facie c ase under the WPA is a question of law that this Court reviews de novo.” Hays v Lutheran Social Servs of Mich , 300 Mich App 54, 59; 832 NW2d 433 (2013) (citation omitted).

II. GOVERNING LAW

Plaintiff contends the trial court erred in granting summary d isposition in favor of defendants and denying his motion f or summary disposition. We disagree.

The WPA, MCL 15.362, provides:

An employer shall not discharge, threaten, or otherwise discrim inate against an employee regarding the employee’s compensation, terms, conditio ns, location, or privileges of employment because the employee, or a person acti ng on behalf of the employee, reports or is about to report, verbally or in wri ting, 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 Unite d States to a public body, unless the employee knows that the report is false, or be cause an employee is requested by a public body to p articipate in an investigatio n, hearing, or inquiry held by that public body, or a court action.

As recently discussed by this Court in McNeill-Marks v Midmichi gan Medical Center-Gratiot

, 316 Mich App 1, 16-17; 891 NW2d 528 ( 2016) (citations and quota tion marks omitted):

To establish a prima facie case under the above provision, a pl aintiff must show that (1) the plaintiff was engaged in a protected activity as d efined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection e xisted between the protected activity an d the discharge. Protected activity under the WPA consists of (1) reporting to a public body a violation of a law, regulation , or rule; (2) being about to report such a violation to a public body; or (3) being asked by a public body to participate in an investigation.

As a procedural matter:

To establish a prima facie case, a plaintiff can rely on either direct evidence of retaliation or indirect evidence. Direct evidence is evidence that, if believed, requires the conclusion that unlawful discrimination was at lea st a motivating factor in the employer’s actions. If the plaintiff establishes a prima facie case, a presumption of retaliation arises, which the employer can rebut by offering a legitimate reason for its action[.] To avoid summary dispositi on after the employer offers such a reason, the plaintiff must show that a r easonable factfinder could still conclude that the plaintiff’s protected acti vity was a motivating factor for the employer’s adverse action, i.e., that the employ er’s articulated legitimate reason was a pretext disguising unlawful animus. [ Id. at 17-18 (citations and quotation marks omitted).]-3- To establish that an employer’s stated legitimate reasons for t he adverse employment action comprise pretext, a plaintiff is required to demonstrate: (a) the articulated reasons lack a basis in fact, (b) if a factual basis does exist, that the reasons given are not the true basis for motivating the termination or discharge decision, or (c) if the reasons gi ven did comprise factors in the decision, they were not sufficient to justify the action or dec ision. Id. at 18 (citation omitted). Thus, the pertinent “inquiry is wh ether the employer was motiva ted by retaliatory animus[.]” Id.

III. EVIDENTIARY ISSUES

At the outset, while the parties do not contest that plaintiff ’s discharge comprised an adverse employment action, in the trial court defendants did no t concede that plaintiff’s filing of a police report comprised a protected activity on the basis tha t the report was false. Id . at 17. In support of their position, defendants provided a copy of the re port generated by the Oakland County Sheriff’s Department following their investigation, indi cating that the prosecutor was unwilling to pursue the matter or bring charges. Plaintiff contests the admissibility of the police report.

In general, police reports constitute inadmissible hearsay. M RE 801(c); MRE 802; In re Forfeiture of a Quantity of Marijuana , 291 Mich App 243, 254; 805 NW2d 217 (2011). While defendants, in part, rely on the police report to suggest that plaintiff’s claims are false, they also imply that the conclusion of the police investigation without c harges against Henry Green served to bolster their own determination that plaintiff was not truth ful about the alleged event and, therefore, their decision to term inate plaintiff’s employment w as justified and supported by legitimate reasons. If the police report was not offered for the truth of the matter asserted, it would not amount to hearsay pursuant to MRE 801(c). Int’l Union, United Automobile, Aerospace and Agricultural Implem ent Workers of America v Dorsey , 273 Mich App 26, 36; 730 NW2d 17 (2006). In any event, the admissibility of the police report is not dispositive because plaintiff was unable to establish a prima facie case of retalia tory discharge in violation of the WPA on the basis of causation.

Further, plaintiff contends that defendants have submitted imp roper character evidence regarding his performance and difficulties with coworkers. Thi s Court has recognized that MRE 404(b) applies in civil as well as criminal cases. Lewis v LeGrow , 258 Mich App 175, 207; 670 NW2d 675 (2003). MRE 404(b)(1) evidence is admissible when:

(1) the evidence is offered for some purpose other than charact er to conduct, or a propensity theory; (2) the evidence is relevant (having any ten dency to make the existence of a fact more or less probable) and material (relati ng to a fact of consequence to the trial); (3) t he trial court determines under MRE 403 that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice; and (4) the tr ial court may provide a limitin g instruction under MRE 105. [ Lewis , 258 Mich App at 208 (citations omitted).]

In the circumstances of this case, defendants’ evidence of plai ntiff’s prior “bad acts” was not proffered as a reason for his discharge or termination or pursu ant to a propensity theory. Rather, it was provided in response to plaintiff’s contention that his “stellar” employment record led to the incontrovertible assumption that defendants’ termination of his employment was the result of-4- discriminatory animus premised on his filing of a police report . As such, we conclude the evidence was not offered for an improper purpose.

IV. ANALYSIS

When attempting to establish a prima facie case of retaliatory discharge, it is generally recognized that it is “usually di fficult to prove” the causatio n element. Cuddington v United Health Servs, Inc , 298 Mich App 264, 275; 826 NW2d 519 (2012). Plaintiff sugges ts that the temporal proximity of his discharge to his reporting to police an incident allegedly involving Green threatening plaintiff with a knife is evidence of the ret aliatory nature of his discharge. Contrary to plaintiff’s asserti on, in order to demonstrate reta liation it is incumbent on a plaintiff to “show something more than merely a coincidence in time betwe en protected activity and adverse employment action[.]” West v Gen Motors Corp , 469 Mich 177, 186; 665 NW2d 468 (2003) (footnote and citation omitted). The Michigan Supreme C ourt has routinely indicated that causation cannot be established “simply on the basis of timing[ .]” Garg v Macomb Co Community Mental Health Servs , 472 Mich 263, 287; 696 NW2d 646 (2005), amended 473 Mich 2015 (2005). As such, the ti ming of plaintiff’s discharge does not, by itself, establish the necessary causation element for pl aintiff’s claim of retaliator y discharge.

Plaintiff asserts that Timothy Thane’s response, as an owner a nd manager of Torsion Control Products, Inc. (Torsion), to a hypothetical question du ring his deposition constitutes an admission and, thus, is direct evidence of discriminatory animu s. During his deposition, Thane stated, in response to a hypothetical question from plaintiff’s counsel, that if the police had determined that Green had drawn a knife on plaintiff, Green wou ld have been terminated and plaintiff would have been “br ought . . . back.” As an initial matter, plaintiff’s position is undermined by additional testimony from Thane, indicating that had plaintiff returned to work, regardless of the truth of his allegations to the police, he wo uld have been permitted to resume his employment. In addition, “p arties opposing a motion for su mmary disposition must present more than conjecture and speculation to meet their burden of pr oviding evidentiary proof establishing a genuine issue of material fact.” Libralter Plastics, Inc v Chubb Group of Ins Cos

, 199 Mich App 482, 486; 502 NW2d 742 (1993) (citation omitted). Even if Thane’s response to a hypothetical question were accepted as true, although causati on “may be established by circumstantial evidence,” such evidence cannot comprise “mere s peculation.” See, e.g., Wiley v Henry Ford Cottage Hosp , 257 Mich App 488, 496; 668 NW2d 402 (2003). Because the reco rd does not contain direct evidence of retaliation, the next step is to evaluate whether any circumstantial evidence supports plaintiff’s claim of retaliati on.
As explained by our Supreme Court:

Absent direct evidence of retal iation, a plaintiff must rely o n indirect evidence of his or her employer’s unlawful motivations to show that a causal link exists between the whistleblowing act and the employer’s advers e employment action. A plaintiff may present a rebuttable prima facie case on the basis of proofs from which a factfinder could infer that the plaintiff w as the victim of unlawful [retaliation]. Once a plaintiff establishes a prima f acie case, a presumption of [retaliation] arises because an employer’s adver se action is more likely than not based on the consideration of impermissible fac tors—for example,-5- here, plaintiff’s protected ac tivity under the WPA—if the emplo yer cannot otherwise justify the adve rse employment action. [ Debano-Griffin v Lake Co

, 493 Mich 167, 176; 828 NW2d 634 ( 2013) (citations and quotationmarks omitted).]

But if an employer proffers “a legitimate reason for its action and the plaintiff fa ils to show that a reasonable fact-finder could still conclude that the plaintiff’ s protected activity was a ‘motivating factor’ for the employer’s advers e action,” summary dispositionmay be appropriate. Id. (citation omitted). Significantly, “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 discrimination.]” Id. (citation omitted).

As evidence of retaliation, plaintiff argues that that his pri or record as a good employee for defendants, receiving raises and bonuses routinely, belied any subsequent contention by defendants that he was a troublem aker or problematic in the workplace. He contends that efforts by defendants taken after-the-fact to blemish his reputation as an employee are evidence of their animus, particularly when considered in context of the close te mporal proximity between his filing of a police report and his termination.

While “it is reasonable to conclude that the more an employer is affected by the plaintiff’s whistleblowing activity, the stronger the causal li nk becomes between the protected activity and the employer’s adve rse employment action[,]” id. at 178, in this instance there is no evidence or suggestion that plaintiff’s filing of a police repo rt adversely impacted defendants. First, plaintiff’s police report pertained to the alleged crimi nal behavior of Green and did not allege wrongdoing by defendants. Hence, the ensuing police inv estigation can be said to be tertiary or peripheral to defenda nts and their business interes ts. Second, the testimony of various individuals that worked at Tor sion indicated that defendants di d not display a negative response to the filing of the police repo rt, but rather, welcomed the in vestigation as a means to definitively determine how events transpired. As such, there is simply no f actual basis in the record to infer a retaliatory motive on the part of defendants. As noted previou sly, any temporal proximity between plaintiff’s discharge and his filing of a police report is insufficient to establish causation. West , 469 Mich at 186.

Plaintiff also contends that the absence of a disciplinary rec ord, coupled with his prior receipt of bonuses and raises, pe rmits an inference that there existed a retaliatory motivation for his discharge. However, the record reflects that defendants re sorted to written discipline very rarely and preferred “course corr ection” to address issues whenthey arose in the workplace. Moreover, plaintiff’s receipt of raises or bonuses, commensurat e with everyone in Torsion on a routine basis, does not diminish or outweigh the evidence put f orth by defendants that plaintiff was a difficult employee, often involved in confrontations withmultiple coworkers. Further, contrary to plaintiff’s asserti on, his supervisor, Daniel Walke r, testified that he retained informal notes on all employees and primarily developed the notes in clo se proximity to when events occurred. Plaintiff’s implica tion that the listing of concerns pertaining to plaintiff’s behavior in the workplace was fabricated by defendants is therefore without evidentiary support. Simply because one incident involving plaintiff and a supplier’s emplo yee resulted in additional verification of the event after T hane queried Walker regarding whether any known altercations involving plaintiff had not been documented, does not suggest t hat defendants’ evidence was-6- purposefully developed retrospectively as a means to substantia te plaintiff’s discharge. Accordingly, any circumstantial evidence put forth by plaintiff does not establish a question of fact regarding causation necessary to overcome summary disposit ion of his retaliatory discharge claim.

V. PRETEXT

Additionally, even if plaintiff could establish a prima facie case of retaliation, he cannot meet the burden shifting requirem ents to establish pretext. Pl aintiff claims that defendants set forth various and conflicting reas ons for his discharge, which should be construed as supportive of his claim of pretext. Speci fically, plaintiff argues that d efendants initially justified his discharge as a voluntary termination for failing to return to w ork, but then proffered conflicting reasons for his termination including his alleged misconduct or problematic behavior at work. However, defendants have consiste ntly asserted that plaintiff’s discharge was the result of his failure to return to work. The r ecord reflects that plaintiff left work and did not return despite having indicated to defendants dates when he would present for his shift. Initia lly, plaintiff indicated he would only return t o work upon receipt of a “guarantee” of his safety. He informed defendants approximately 30 minutes before the initiation of hi s shift on March 4, 2015, that he would not report for work. Plaintiff then indicated, in accord ance with a physician’s note which defendants deny receiving, that he would remain off of work unt il March 9, 2015. Again, he did not appear, next asserting he woul d return to work on March 11, 2015, but did not report for his scheduled shift. As a result, def endants contacted plaintiff i n writing to inform him that they were treating his failure to return to work as a voluntary resi gnation. Defendants’ contentions regarding plaintiff’s history of problematic behavior at Torsio n were in response to plaintiff’s assertion of a “stellar” work r ecord and not proffered as a jus tification for his termination.

Plaintiff contends that the shifting justifications for his te rmination created a genuine issue of material fact, citing to federal case law, which indic ates that “[s]hifting justifications over time calls the credibility of those justifications into qu estion. By showing that the defendants’ justification for firing him changed over time, [th e plaintiff] shows a genuine issue of fact that the defendants’ proffered reason was not only fals e, but that the falsity was a pretext for discrimination.” Pierson v Quad/Graphics Printing Corp , 749 F3d 530, 540 (CA 6, 2014) (citation omitted). As such, “shifting justifications raise an inference that the proffered reasons are false and are pretext for discrimination.” Id. at 541.

Contrary to plaintiff’s conten tion, there is no basis to apply the shifting justifications reasoning in the circumstances of this case. The legitimate re ason proffered by defendants, plaintiff’s ongoing failure to repo rt for work or provide suffi cient notification for his absence, did not vary or conflict with the reason provided at the time o f plaintiff’s termination, which indicated his failure to return to work was being treated as a voluntary termination. The mere fact that defendants also noted o ther concerns pertaining to pl aintiff at Torsion do not comprise conflicts in the reasons for the termination, but rather, conte xt for their failure to encourage plaintiff to return to work. “[T]he existence of a possible ad ditional non-discriminatory basis for [plaintiff’s] termination does not , however, prove pretext.” Tidwell v Carter Prod , 135 F3d 1422, 1428 (CA 11, 1998). Notably, defendants’ explanation for plaintiff’s termination has not shifted or varied from their initial assertions. While it is r eadily acknowledged that although “[f]ederal caselaw is not binding precedent, [it] may be [consi dered as] persuasive,” Young v-7- Independent Bank , 294 Mich App 141, 145 n 1; 818 NW2d 406 (2011) (citation omit ted), because we conclude defendants’ reasons for plaintiff’s termina tion did not comprise shifting justifications or evidence of pretext, the “shifting justificat ions” analysis is simply not applicable under the facts of this case.

Affirmed. Defendants, as the pr evailing parties, may tax cost s pursuant to MCR 7.219.

/s/ Deborah A. Servitto /s/ Mark J. Cavanagh /s/ Karen M. Fort Hood