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STATE OF MICHIGAN 

COURT OF APPEALS 

SGT. BRIAN SCHAEFER, 

 Plaintiff-Appellant, 

UNPUBLISHED 

November 10, 2016 

v No. 328054 

Wayne Circuit Court 

PLYMOUTH TOWNSHIP and THOMAS J. 

TIDERINGTON, 

LC No. 14-001889-NZ 

 Defendants-Appellees. 

Before: TALBOT, C.J., and K. F. KELLY and MURRAY, JJ. 

PER CURIAM. 

 Plaintiff appeals as of right an order granting defendants summary disposition in 

plaintiff’s claim brought under Michigan’s Whistleblower’s Protection Act (WPA), MCL 15.361 

et seq. Finding no error warranting reversal, we affirm. 

I. BASIC FACTS 

 Plaintiff Sergeant Brian Schaefer (Schaefer) sued defendants, Plymouth Township (the 

township) and Chief of Police Thomas J. Tiderington (Tiderington), alleging that he was 

wrongfully terminated as a result of answers that he gave during a mandatory interview with 

township attorneys Laura Amtsbuechler and Chris Johnson in connection with a lawsuit brought 

by another officer, Brittany DeFrain, against the township (the DeFrain lawsuit). DeFrain had 

sued the township for sexual discrimination after the township extended her probationary work 

period beyond the traditional one-year period as a result of a relationship she had with a fellow 

married officer, Scott Linton. 

 Schaefer was a sergeant who supervised Linton as well as Officer Stephen Albrecht and 

who also supervised DeFrain during her field training. In his August 2013 interview with 

township attorneys, Schaefer denied knowing that DeFrain and Linton were in a relationship. 

Schaefer also told the attorneys that, in his opinion, Tiderington should not have extended 

DeFrain’s probationary period because such an extension was simply unheard of. Schaefer 

believed that DeFrain should have either been hired or fired. Shortly after this meeting, 

Tiderington and his administrative lieutenant, Jon Brothers, began an internal investigation of 

Linton and Albrecht. Mobile data messaging had revealed that both Linton and Albrecht 

routinely slept on duty and that Linton was covering up his affair with DeFrain. There was one 

message from Linton to DeFrain indicating that “Schaef’s at home, now we can meet to kiss.” 
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Tiderington was concerned that Schaefer was at home at that time because it indicated a 

“manpower” issue, so he asked Brothers to investigate why Schaefer was home when he should 

have been on duty. Brothers determined that there was no explanation for Schaefer being home. 

Additionally, Schaefer had been turning off his patrol car’s computer system, so, unlike his 

fellow officers, there was no accounting for Schaefer’s whereabouts. A GPS device was placed 

on the shared patrol car and revealed that Schaefer routinely went home for extended periods of 

time while he was on duty. Tiderington charged Schaefer with a number of policy and rules 

violations and Schaefer was fired in December 2013. He filed a union grievance but the 

arbitrator determined that there was just cause for firing Schaefer and the dismissal was upheld. 

 Schaefer filed his complaint on February 14, 2014, alleging that he was terminated 

because of his truthful answers to mandated participation in the DeFrain investigation wherein 

Schaefer criticized Tiderington’s handling of DeFrain’s probationary status, denied knowledge 

of a sexual relationship between DeFrain and Linton, and suggested that married officers who 

were friends of Tiderington’s were involved in sexual relationships with female employees. 

 Defendants moved for summary disposition pursuant to MCR 2.116(C)(10). They 

argued that Schaefer was not involved in a “protected activity” because there was no evidence 

that Schaefer ever participated in a court action; his meeting with township attorneys was not 

conducted by a public body. Additionally, defendants argued that there was no causal 

connection between Schaefer’s alleged protected activity and his termination. Schaefer could 

point to no evidence to factually demonstrate a causal link between his interview with the 

attorneys and his termination; instead, Schaefer offered mere speculation. Defendants pointed 

out that there was no evidence that Tiderington even knew what Schaefer said in the interview. 

Defendants maintained that Schaefer could not show that the proffered reason for his termination 

was mere pretext when Schaefer, in fact, acknowledged his wrongdoing and only took issue with 

the severity of his discipline. 

 The trial court agreed that Schaefer failed to bring forth any evidence that defendants’ 

proffered reasons for firing Schaefer were pretextual and that retaliation was a motivating factor. 

The trial court entered an order in defendants’ favor on June 3, 2015. Schaefer now appeals as of 

right. 

II. STANDARD OF REVIEW 

 “We review de novo motions for summary disposition brought under MCR 

2.116(C)(10).” Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Under that rule, 

summary disposition is appropriate when “[e]xcept as to the amount of damages, there is no 

genuine issue as to any material fact, and the moving party is entitled to judgment or partial 

judgment as a matter of law.” MCR 2.116(C)(10). 

A motion for summary disposition under MCR 2.116(C)(10) tests the factual 

sufficiency of the complaint. The moving party must specifically identify the 

matters that have no disputed factual issues, and it has the initial burden of 

supporting its position by affidavits, depositions, admissions, or other 

documentary evidence. The party opposing the motion then has the burden of 

showing by evidentiary materials that a genuine issue of disputed material fact 
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exists. The existence of a disputed fact must be established by substantively 

admissible evidence, although the evidence need not be in admissible form. A 

genuine issue of material fact exists when the record, giving the benefit of 

reasonable doubt to the opposing party, leaves open an issue upon which 

reasonable minds could differ. [Bronson Methodist Hosp v Auto-Owners Ins Co, 

295 Mich App 431, 440–441; 814 NW2d 670 (2012) (internal citations omitted).] 

“Because a motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint, the 

circuit court must consider the affidavits, pleadings, depositions, admissions, and other evidence 

submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the 

motion.” Joseph v Auto Club Ins Ass'n, 491 Mich 200, 206; 815 NW2d 412 (2012). 

III. ANALYSIS 

 Schaefer argues that the trial court erred in granting defendants summary disposition. We 

disagree and conclude that the trial court properly granted defendants summary disposition 

where Schaefer failed to raise a genuine issue of material fact regarding the causal connection 

between his protected activity and his firing. 

 MCL 15.362 provides: 

 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. 

Here, Schaefer claims that he was a “Type 2” whistleblower. Our Court has explained: 

The plain language of the statute provides protection for two types of 

“whistleblowers”: (1) those who report, or are about to report, violations of law, 

regulation, or rule to a public body, and (2) those who are requested by a public 

body to participate in an investigation held by that public body or in a court 

action. On the basis of the plain language of the WPA, we interpret a type 1 

whistleblower to be one who, on his own initiative, takes it upon himself to 

communicate the employer's wrongful conduct to a public body in an attempt to 

bring the, as yet hidden, violation to light to remedy the situation or harm done by 

the violation. In other words, we see type 1 whistleblowers as initiators, as 

opposed to type 2 whistleblowers who participate in a previously initiated 

investigation or hearing at the behest of a public body. If a plaintiff falls under 

either category, then that plaintiff is engaged in a “protected activity” for purposes 

of presenting a prima facie case. [Henry v City of Detroit, 234 Mich App 405, 

409–410; 594 NW2d 107 (1999).] 
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 Our Supreme Court has identified the elements necessary for a prima facie case under the 

WPA: 

 Drawing from the statutory language, this Court has identified three 

elements that a plaintiff must demonstrate to make out a prima facie case that the 

defendant employer has violated the WPA: 

(1) The employee was engaged in one of the protected activities listed in the 

provision. 

(2) The employee was discharged, threatened, or otherwise discriminated against 

regarding his or her compensation, terms, conditions, location, or privileges of 

employment. 

(3) A causal connection exists between the employee's protected activity and the 

employer's act of discharging, threatening, or otherwise discriminating against the 

employee. [Wurtz v Beecher Metro Dist, 495 Mich 242, 250–252; 848 NW2d 

121, reh den 495 Mich 1010 (2014) (internal footnotes omitted).] 

Although defendants argued that Schaefer was not engaged in a protected activity when he met 

with township attorneys, we decline to address whether Schaefer was, in fact, engaged in a 

protected activity, where the trial court did not directly rule on the issue. Given the fact that he 

was fired, Schaefer obviously satisfied the second element of a prima facie WPA claim. At 

issue, then, is whether there was a genuine issue of material fact as to whether a causal 

connection existed between Schaefer’s protected activity and his termination. 

 “Because whistleblower claims are analogous to other anti-retaliation employment claims 

brought under employment discrimination statutes prohibiting various discriminatory animuses, 

they should receive treatment under the standards of proof of those analogous claims,” including 

the burden-shifting framework set forth in McDonnell Douglas Corp v Green, 411 US 792; 93 S 

Ct 1817; 36 L Ed 2d 668 (1973). Debano-Griffin v Lake Co, 493 Mich 167, 175–176; 828 

NW2d 634 (2013) (internal quotation marks and citations omitted). Therefore, where, as here, 

there is no direct evidence of retaliation, a plaintiff may rely on indirect evidence of his 

employer’s motivations to show that “a causal link exists between the whistleblowing act and the 

employer's adverse employment action.” Id. at 176. A plaintiff may accomplish this by 

presented “proofs from which a factfinder could infer that” plaintiff was the victim of retaliation. 

Id. After a plaintiff has come forward with such evidence, a presumption of retaliation arises. 

Id. An employer may nevertheless 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. After an employer articulates a legitimate reason for the action, the burden shifts 

back to the plaintiff to establish that the proffered reason was merely a pretext for unlawful 

retaliation. Id. 

 “A plaintiff can prove pretext either directly by persuading the court that a retaliatory 

reason more likely motivated the employer or indirectly by showing that the employer's 

proffered explanation is unworthy of credence.” Taylor v Modern Engineering, Inc, 252 Mich 
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App 655, 660; 653 NW2d 625 (2002). However, “[s]ummary disposition for the defendant is 

appropriate when a plaintiff cannot factually demonstrate a causal link between the protected 

activity and the adverse employment action” and a plaintiff “must show something more than 

merely a coincidence in time between protected activity and adverse employment action.” West 

v Gen Motors Corp, 469 Mich 177, 184, 186; 665 NW2d 468 (2003). 

 Schaefer points to the temporal relationship between his meeting with township attorneys 

in August 2013, the staff investigation and meeting in September 2013, and his firing in 

December 2013. The meeting with the township attorneys no doubt set in motion the events that 

ultimately led to Schaefer’s termination, but not in the way Schaefer would have the trial court 

believe. Schaefer implies that Tiderington engaged in a surreptitious witch hunt after learning 

about Schaefer’s statements but the record does not support such a conclusion; instead, it is clear 

that the focus of the internal investigation was Linton and Albrecht, with Schaefer factoring in in 

a minor way. 

 Even viewing the evidence in a light most favorable to Schaefer, Schaefer has failed to 

present sufficient evidence to create a genuine issue of material fact regarding a causal 

connection between the protected activity and his termination. Defendants proffered legitimate 

business reasons for firing Schaefer based on his flagrant violation of rules and policies and his 

inability to properly supervise Linton and Albrecht, which allowed them to likewise disregard 

and neglect their duties. Schaefer readily admitted that he and his wife were having problems 

after the birth of their second child and that he felt compelled to go home while on duty to help 

her. Schaefer’s home was beyond the bounds set for leaving the township. Additionally, even if 

Schaefer’s testimony is believed that he did not purposefully turn off the patrol car’s computer 

system to hide his whereabouts, the fact remained that Schaefer was the only sergeant whose 

whereabouts could not be determined. As a result, a GPS device was placed on the patrol car. 

Contrary to Schaefer’s repeated reference to the car as “his,” the evidence clearly reveals that 

this was a patrol car shared by all the sergeants. Once the GPS device was placed on the patrol 

car, the department learned that there were at least two incidents in which Schaefer was home for 

extended periods of time while on duty and that he responded to at least two calls from home. 

On one such occasion, Schaefer drove over 90 miles per hour and did not activate his overhead 

lights until he was back in the township. Even if Schaefer is believed and this was merely a 

coincidence, the fact remains that the department was justified in concluding that Schaefer had a 

habit and pattern of spending large blocks of time at home and actively undertook to hide his 

location from the department. Obviously, Schaefer’s focus was not on his professional 

obligations as a supervising sergeant and his lack of attentiveness allowed Linton and Albrecht to 

run amok. Schaefer also admitted to occasions in which dispatch was unable to contact him 

because he was engaged in personal errands while on duty. In addition, Schaefer admitted that 

he routinely stopped by his business in direct contravention of Tiderington’s orders. Other 

flagrant policy violations included Schaefer or other officers driving Schaefer’s drunken friends 

home. 

 Because there was a legitimate business reason for Schaefer’s firing, it was incumbent 

upon Schaefer to provide sufficient evidence to create a genuine issue of material fact as to why 

those reasons were pretextual. Schaefer failed to do so because he attempted to create evidence 

by inference, meaning Schaefer asked the trial court to simply determine that neither 

Amtsbuechler nor Tiderington were credible. It is true that “[c]ircumstantial evidence can be 
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evaluated and utilized in regard to determining whether a genuine issue of material fact exists for 

purposes of summary disposition,” Bergen v Baker, 264 Mich App 376, 387; 691 NW2d 770 

(2004), but Schaefer’s “evidence” falls far short of creating an issue of fact. 

 Amtsbuechler explained that her interview with Schaefer was an attempt to understand 

why DeFrain had resigned as well as determine the extent of Schaefer’s knowledge regarding the 

relationship between Linton and DeFrain. Much of the information she received was 

information she already knew. Amtsbuechler did not know, nor did she care, what Schaefer’s 

personal opinions were about whether DeFrain’s extension was appropriate. She only wanted to 

know about DeFrain’s performance. Something about Schaefer’s demeanor led Amtsbuechler to 

believe that he was not telling the truth when he denied knowing that Linton and DeFrain were in 

a relationship. When she spoke to Tiderington after the interviews, Amtsbuechler told 

Tiderington that she did not believe Schaefer was being totally honest. Amtsbuechler testified 

that Schaefer’s honesty, or lack thereof, was “the only thing that” she talked to Tiderington 

about. 

 On appeal, as in the trial court, Schaefer argues that Amtsbuechler’s testimony was not 

worthy of belief. However, Schaefer does not explain how Amtsbuechler’s testimony was “selfserving” or what Amtsbuechler would gain in lying about what she told Tiderington. Instead, 

Schaefer simply believes Amtsbuechler was lying and asked the trial court to draw the same 

conclusion. 

 Schaefer similarly attacked Tiderington’s credibility. Tiderington testified that 

Amtsbuechler did not tell him that Schaefer told Amtsbuechler that it violated the field training 

program protocol for Tiderington to extend DeFrain’s probationary period. Tiderington testified 

that he only learned that Schaefer believed the statements made to Amtsbuechler were related to 

the firing when Tiderington saw Schaefer’s lawsuit. 

Q. Okay. did Ms. – Laura – did she tell you that Schaefer had been 

critical of you for not conferring with him regarding extending Defrain’s 

probationary period? 

A. Never had that conversation with her, ever. 

Q. Okay. Did Laura – and when I say Laura let me include Mr. Johnson 

also. He didn’t tell you anything like that? 

A. He did not. 

*** 

Q. Isn’t it true that you fired Schaefer because you didn’t like what it is he 

said during the meeting with the attorneys? 

A. That’s the most absurd thing that I’ve ever heard. . . .And to clarify 

that, that never happened. 

*** 
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Q. Isn’t it true that you investigated Schaefer to the extent that you did 

because of what he told the attorneys in that meeting? 

A. That’s absolutely false. I assigned his friend to investigate him, a man 

of unquestioned integrity. He conducted the staff inspection. I didn’t conduct it. 

There’s no question that whatever Jon Brothers wrote down was factual. 

 Schaefer never came forward with a shred of evidence that his comments to the township 

attorneys regarding the extension of DeFrain’s probation were communicated to Tiderington. 

Critically important, Schaefer had no direct knowledge of what the attorneys communicated to 

Tiderington. 

Q. And do you have any information from any other source as to what the 

attorneys Johnson and Amtsbuechler, told the chief about your conversation? 

A. I have no direct information. 

Q. Either written or verbal? 

A. Correct. 

Q. So, other than what you – your speculation or what you think, you 

have no direct knowledge or information about what they communicated to the 

chief, “they” meaning the attorneys? 

A. Other than my strong beliefs on what happened. 

Q. So, there’s no factual basis for that other than your strong beliefs; is 

that correct? 

A. I believe there’s a factual basis, yes, there’s – 

Q. On a factual basis as to what somebody told you or what you read? 

A. Yes. No direct verbal or written. 

Such “speculation” and “conjecture” were insufficient to raise a genuine issue of fact. Skinner v 

Square D Co, 445 Mich 153, 172-173; 516 NW2d 475 (1994); Ghaffari v Turner Const Co, 268 

Mich App 460, 465; 708 NW2d 448 (2005). 

 Contrary to Schaefer’s assertions, the trial court did not weigh the credibility of the 

witnesses but simply considered the absence of contrary evidence. It is certainly true that 

witness credibility is a question of fact for the jury to decide, but there was no genuine issue of 

fact remaining because there were not two competing versions of what occurred. Instead, both 

Amtsbuechler and Tiderington denied that Schaefer’s comments about DeFrain’s extension were 

communicated to Tiderington. In response, Schaefer came forth with no contrary evidence other 

than his “strong beliefs.” This was not a situation where summary disposition was inappropriate 

because Tiderington’s subjective motivation was at play, see Pemberton v Dharmani, 207 Mich 
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App 522, 529 n 1; 525 NW2d 497 (1994) (“summary disposition is inappropriate where 

questions of motive, intention, or other conditions of the mind are material issues”), nor is this a 

situation that involved “crucial credibility determinations,” White v Taylor Distributing Co, Inc, 

275 Mich App 615, 631; 739 NW2d 132 (2007), aff’d 482 Mich 136 (2008). This is a situation 

where there was no evidence that the information was ever conveyed and, as such, Tiderington 

could not have been motivated to retaliate against Schaefer. When Schaefer’s “speculative 

testimony is disregarded, the only testimony that remains is” that of Tiderington and 

Amtsbuechler. Ghaffari, 268 Mich App at 465. 

 While certain circumstances might present issues of fact or credibility that preclude 

summary disposition even in the absence of specifically refuting documentary evidence, White, 

275 Mich App at 626, 628, this is not such a situation, especially where Schaefer has repeatedly 

admitted to his own wrong-doing. He repeatedly conceded that his behavior formed the basis for 

some sort of discipline. Schaefer’s allegation that there was pretext thus rings hollow. 

Especially in light of Schaefer’s counsel’s statement at Schaefer’s deposition when the attorneys 

were fighting about the length of the deposition: “You know, this man has already admitted to 

every one of these accusations. He admitted it before there was any proceeding against him. 

Then he went to arbitration and he admitted them again. And now you’ve got him to admit it a 

third time, but that isn’t good enough for you.” (Pl Dep, p 504.) 

 Contrary to Schaefer’s assertions, the trial court did not apply the doctrine of collateral 

estoppel when it concluded that Schaefer failed to demonstrate an issue of material fact when it 

came to causation. In a reply brief, defendants had argued that Schaefer could not show the 

reasons for his termination were insufficient because “the decision was independently reached by 

Richard Reaume [the township supervisor], along with an independent arbitrator. In a footnote, 

defendants cited Cole v West Side Auto Employees Fed Credit Union, 229 Mich App 639; 583 

NW2d 226 (1998) for the idea that the arbitrator’s decision had collateral estoppel effect. 

 Collateral estoppel bars relitigation of an issue in a new action arising 

between the same parties or their privies when the earlier proceeding resulted in a 

valid final judgment and the issue in question was actually and necessarily 

determined in that prior proceeding. The doctrine bars relitigation of issues when 

the parties had a full and fair opportunity to litigate those issues in an earlier 

action. A decision is final when all appeals have been exhausted or when the time 

available for an appeal has passed. [Leahy v Orion Twp, 269 Mich App 527, 530; 

711 NW2d 438 (2006) (internal citations omitted).] 

 At the motion hearing, the trial court made a couple of comments that Schaefer 

misconstrues, including: 

• “We’re rehashing a little bit of the disciplinary proceeding here, and I’m not supposed 

[to] necessarily be revisiting that. I’m supposed to be assigned whether or not you’ve 

submitted sufficient evidence, Mike, under the WPA.” 
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• “As it relates to the causal connections argument, it appears as though the plaintiff is 

attempting to relitigate that to which he’s already admitted in the disciplinary proceeding 

which was independent.” 

• “The fact that the chief decided to enforce those violations in a department that appears to 

have been running rampant, again we can’t attack the business decision of the arbitrator. 

The arbitrator dismissed on nonpretextual grounds.” 

However, it is clear from the entire transcript that the trial court did not believe that it was bound 

in any way by what occurred at arbitration or the arbitrator’s conclusions. Instead, the trial court 

pointed to the fact that Schaefer admitted to much of the wrong-doing and that the arbitrator 

declined to upset the decision to terminate Schaefer where just cause existed for the termination. 

The trial court pointed to the arbitration decision as support for its conclusion that defendants 

had set forth legitimate non-retaliatory reasons for firing Schaefer and that Schaefer had failed to 

meet his burden of demonstrating that the proffered reasons were pretextual. The trial court 

stated: “The plaintiff hasn’t met their [sic] burden to come back once that burden shifts to 

establish that this was a pretext even though the plaintiff cites to the timing aspect.” The 

following exchange took place: 

 MR. STEFANI [plaintiff’s attorney]: So you’re saying – 

 THE COURT: What I’m saying – 

 MR. STEFANI: -- that we don’t have any – the arbitration had nothing to 

do with the Whistleblower case. It wasn’t mentioned in the arbitration because 

the arbitration was arbitrating a labor contract. 

 THE COURT: I understand. 

 MR. STEFANI: And I’m not here to argue. I just want it clear on the 

record. 

 THE COURT: Mr. Stefani, once the defendants have substantiated that 

there were legitimate reasons for the discharge, it’s incumbent upon the plaintiff 

to respond to that burden shifting. The Court finds for those reasons stated on the 

record that the plaintiff has not, and the motion will be granted. 

Moreover, the fact that Schaefer never raised his retaliation claim during the arbitration was 

further support that no such claim existed. Although Schaefer explained that he was simply too 

much of a stand-up guy to point fingers at other officers’ behavior, it stands to reason that he 

would have raised a retaliation claim when his job was on the line. 

 Finally, there is no evidence that Schaefer received a harsher punishment than any other 

similarly situated officer. Both Linton and Albrecht resigned in lieu of being fired for their 

behavior while Schaefer was supposed to be supervising them. It is disingenuous for Schaefer to 

claim that he was somehow targeted when those other officers suffered similar fates. And as for 

claims of other officers’ misconduct, even if what Schaefer and Albrecht said were true, the 

record is bereft of Tiderington having any knowledge of other officers’ wrong-doing. 
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 The trial court properly granted defendants summary disposition where Schaefer was 

unable to establish a prima facie WPA claim. Specifically, where defendants proffered 

legitimate, non-discriminatory reasons for firing Schaefer, Schaefer failed in his burden of 

bringing forth evidence that those reasons were merely pretextual. 

 Affirmed. 

/s/ Michael J. Talbot 

/s/ Kirsten Frank Kelly 

/s/ Christopher M. Murray