Carl Stephen Sanker v. Ken Graff Automotive LLC ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CARL STEPHEN SANKER, also known as CARL UNPUBLISHED
STEVEN SANKER, August 24, 2023
Plaintiff-Appellant,
v No. 361295
Washtenaw Circuit Court
KEN GARFF AUTOMOTIVE, LLC, formerly LC No. 21-000011-CD
known as DEALERS’ CHOICE AUTOMOTIVE
ADVISORS, GL TELEGRAPH, LLC, formerly
known as TELEGRAPH CHRYSLER DODGE
JEEP RAM, and TELEGRAPH CHRYSLER
DODGE JEEP RAM OF TAYLOR MICHIGAN,
Defendants-Appellees.
Before: O’BRIEN, P.J., and CAVANAGH and MARKEY, JJ.
PER CURIAM.
Plaintiff, Carl Sanker, appeals by right the trial court’s order granting summary disposition
under MCR 2.116(C)(10) in favor of defendants, Ken Garff Automotive, LLC, GL Telegraph,
LLC, and Telegraph Chrysler Dodge Jeep Ram of Taylor 1 (collectively “the dealership”).
Although plaintiff alleged numerous causes of action, ultimately the only claim remaining at issue
is plaintiff’s contention that the dealership violated the Whistleblowers’ Protection Act (WPA),
MCL 15.361 et seq., when it terminated plaintiff’s employment. We note, narrowing the claim
even further, that the issue presented on appeal is whether plaintiff presented evidence sufficient
to demonstrate a genuine issue of material fact with respect to whether there was a causal
connection between plaintiff’s engagement in protected activity and the dealership’s act of
discharging him. The trial court concluded that there was no evidence that plaintiff had expressed
to anyone that he was about to report suspected illegal activity before he was fired. We affirm.
1
GL Telegraph, LLC, owns and operates an automobile dealership known as Telegraph Chrysler
Dodge Jeep Ram of Taylor, and Ken Garff Automotive, LLC, is a parent company.
-1-
I. BACKGROUND
Plaintiff was hired by the dealership in February 2019 as a used-car finance manager. In
January 2020, the dealership hired a new general manager, Allan Hall, who reported to regional
vice-president Eddie Cawley. Plaintiff was now a new-car finance manager, and he reported to
general sales manager Joseph Tillman, and Tillman reported to Hall. The COVID-19 pandemic
caused the dealership to shut down in the spring of 2020. Around this time, Hall asked plaintiff to
work on a backlog of contracts known as contracts-in-transit (CIT or contracts), which are
contracts that had not yet resulted in lender funding to the dealership relative to the sale or leasing
of vehicles. Another finance manager from an affiliated dealership located in Southfield assisted
plaintiff with processing the contracts. Plaintiff essentially asserted that the Southfield manager
forged customer signatures on contracts to which corrections had been made. Plaintiff claimed
that the Southfield manager completed or processed CIT in a short period of time by signing the
contracts herself instead of having the customers come in and execute the CIT as required by law.
Plaintiff reported the alleged activity to Hall and Cawley. The claims were investigated internally
and, according to deposition testimony by Cawley, corrective action was taken against the
Southfield manager.2
In his deposition, plaintiff testified that after he had made the complaint about the
Southfield finance manager, Cawley sent him “a scolding reprimand-style e-mail asking why I
would try and bring something like this to light, what my intention was, what my end goal was.”
Plaintiff complained that he was treated as if he had done something wrong when he was simply
honoring his obligation to verify that CIT were actually signed by the customers.
On a different matter, the vehicles sold or leased at the dealership were each equipped with
a global positioning system (GPS), and plaintiff claimed that during the pandemic shutdown he
discovered that the dealership did not have a process in place regarding the transfer of GPS-related
software to customers that allegedly resulted in the dealership’s having access to a customer’s GPS
data. Plaintiff, who was not aware of anyone actually accessing the data, advised Hall and Tillman
of the GPS issue. Although plaintiff could not recall whether he did so on his own or in conjunction
with directives from Hall or Tillman, plaintiff worked on correcting the problem through
transference of GPS products from the dealership to customers.
In a July 8, 2020 e-mail from Cawley to plaintiff and two other dealership employees,
copied to Tillman and Hall, Cawley stated that “we have some work to do now having $1.6 million
in CIT over 15 days old.” Cawley offered a cash bonus if the numbers could be improved to
“under $800,000 by the morning of the 17th for the amount of CIT over 15 days old[.]” In a July
21, 2020 e-mail from Hall to the same individuals, including plaintiff, Hall wrote: “Good job on
the CIT[]. As of the morning of the 17th we were at $1,072,066.63 and as of today we were at
$825,297.90 for contracts over 15 days. While still super high, it is an improvement. So while you
did not earn any extra payola, you did put in a valiant effort.” Hall offered cash bonuses if the CIT
2
In his deposition, when asked what corrective action was taken, Cawley testified: “Up to -- it was
part of a -- a future termination.” We are not quite sure what Cawley meant by this statement.
-2-
were reduced to under $500,000 within 15 days. Around this time, plaintiff voiced frustration with
his work environment, the failure to offer him an open finance director position, the CIT, his pay,
and Hall, and he threatened to quit. Plaintiff testified that the dealership did not want him to leave,
and plaintiff’s pay plan was renegotiated, effective August 1, 2020, which motivated him to stay.
With respect to the finance director position, Tillman sent an e-mail to plaintiff on July 24,
2020, stating:
Thank you for sitting down with us on Tuesday and discussing your
frustrations. Like we discussed in our meeting we are not intentionally stringing
you along with the open Finance Director’s position with our store, the position is
open to anyone who meets the expectations of the Director role, by that I don’t
mean someone fulfilling the role without the title and pay but someone who leads
by example and steps up as a team player. I recognize these leadership abilities in
you and I also think you are capable of meeting these expectations so Al [Hall] and
I agreed to do a 100 day performance review with you. For the next 100 days we
need to see your performance meet all of our normal finance manager expectations
including being on time, all of your transactions being recorded, keeping your CIT
less than 11 days . . . . On 11/1/2020 Al and I will sit down with you and review
your 100 days performance and discuss your qualifications for the Director
position. . . . .
On September 22, 2020, plaintiff leased a $70,000 vehicle from the dealership. Plaintiff
testified that he took delivery of the vehicle and drove it home that very same day. One of the
issues that developed between the dealership and plaintiff concerned the leased vehicle’s residual
value. In his deposition, plaintiff testified:
Q. Okay. All right. Did you intentionally make the residual value 65
percent instead of 64 percent.
A. I don’t remember what the exact values were, but the agreement
with the lender was that the lender would cover 1 percent of the
residual value. So if the residual value was off by 1 percent, the
lender . . . over-funded [it].
Q. Okay. And why did that happen?
A. Because we had a strong relationship with the lender and they have
ability to occasionally override residuals.
Q. Okay. All right. And did Joe Tillman or Al Hall take issue with that?
A. No. They wouldn’t have signed the paperwork if they did.
Q. Okay. Did anybody at [the dealership] inform you that they thought
it was inappropriate for you to have a different residual value than
other customers?
-3-
A. No.
Another issue regarding the leased vehicle concerned the insurance on the car. Plaintiff
had an existing no-fault policy with USAA that covered a different vehicle. It was plaintiff’s
position that his USAA policy automatically insured the newly-leased vehicle for up to 30 days
during a grace period in which he could formally add the new car to the USAA policy or purchase
a new insurance policy. As reflected in an e-mail by plaintiff, he also claimed that “state law
dictates that insurance policies must cover a newly acquired vehicle for 14 days after
acquisition[,]” and that the “dealer has 15 days to process an RD[-]108[,]” giving a customer with
existing no-fault coverage “2 weeks to shop for a new policy on a newly acquired vehicle.”
Plaintiff testified that he formally added no-fault insurance on the leased vehicle through USAA
on September 24, 2020, although he claimed that he was covered by the existing policy by
operation of law and contract as soon as he took delivery on September 22, 2020. There is an e-
mail in the record from Hall indicating that he received a call from USAA, as requested by plaintiff,
and that USAA provided “a proof of insurance on the vehicle effective on his original delivery
date of 9/25/2020.”3 In a September 24, 2020 e-mail from Hall to plaintiff, Hall warned plaintiff
as follows:
Per our conversation today. On your car lease I want a new RD-108 as well
as contract and mileage statement reprinted with the actual miles that were on the
car on the 22nd. As stated we will not tolerate any misrepresentations in any deal or
any employee deal. Also as I said, I do not want that car driven off this lot without
a valid proof of insurance in your name, not post dated for next week. I would hope
you understand that you should never deliver any vehicle without valid insurance
on the new vehicle purchase. Regardless of what you say the rule is with the State
of MI. My rule is no valid proof in purchaser/Leese [sic] name, equals no delivery.
....
Plaintiff testified that he refused to return the leased vehicle to the dealership as demanded
by Hall. In his deposition, plaintiff conceded that the dealership had the right to enforce stricter
rules regarding insurance on newly sold or leased vehicles. There are a series of alleged text
messages between plaintiff and Tillman that were exchanged on September 25, 2020. Crucially,
these texts were not submitted to the trial court until plaintiff filed his motion for reconsideration
after the court had granted the dealership’s motion for summary disposition. Plaintiff texted:
Its harassment at this point and illegal on top of that. I am not coming in on
my day off to park a car that I legally own and have properly insured just because
he [Hall] says so. I am in compliance with state laws and the dealer guidebook. Any
action against me as an employee is further harassment and retaliation as well.
Tillman responded:
3
The record overwhelmingly indicates that the leased vehicle was actually delivered on September
22, 2020.
-4-
This is not harassment and is not undo or unfair. This is my decision as it is
my responsibility to protect the dealership and its assets. Steve you were provided
exact details in terms of taking the vehicle off of the lot in the email sent by Al
[Hall] on my behalf. You are currently in violation of the directive set forth in that
email as well as my directive of not taking the vehicle off the lot without insurance.
We are simply holding you to the same accountability as we ask any customer
buying this type of unit. Please provide proof of insurance on that car effective
today in your name or return the car until you can provide valid insurance on that
vehicle. The reason for this protocol is the high theft of this type of unit.
Plaintiff then concluded the text message exchange, stating:
I stayed late last night making sure everything was clean on my end and I
wouldn’t have to deal with any bullshit today and you still managed to ruin my day
off with this. I dont think you actually understand how heated I am about this. Call
it whatever you want, but being targeted and harassed over a car purchase as an
employee is absolutely insane. And then making up new rules regardless of what
the laws are and trying to force those down my throat and play take away with
something that I legally own and you have no say in is so far across the line, you
really have no idea how badly I still want to get a lawyer involved at this point. If I
didn’t work there I’d have already been to the police and called the state about it.
[Emphasis added.]
In a September 25, 2020 e-mail by Cawley to various dealership personnel, but not
plaintiff, Cawley observed that plaintiff had violated a “directive and took the vehicle home
unauthorized and without a current active policy on this car which is an extremely high risk
vehicle.” Cawley noted in the e-mail that plaintiff was accusing the dealership of harassment but
that “we are just trying to protect both him and our dealership against huge financial risk and
Murphy’s law.”
On September 29, 2020, plaintiff obtained a new no-fault insurance policy from AAA
covering the leased vehicle. In a September 30, 2020 e-mail from Cawley to dealership personnel,
but not including plaintiff, Cawley stated that plaintiff had violated a directive from general
manager Hall and had “also engaged in deceptive practices with the lending institution.” Cawley
further instructed, “I do not want any action taken until we have been funded on his lease contract.
Once we are funded, we should Strongly consider our future with [plaintiff].”
In an October 2, 2020 e-mail from Hall to Cawley and Tillman, responding to an earlier e-
mail from Cawley asking Hall if there was any lease manipulation by plaintiff that resulted in
improper treatment of the lender, Hall stated that plaintiff had manipulated the lender. According
to Hall, the manipulation scammed the lender out of $795.45, which broke down to about $22 a
month.
On October 6, 2020, the dealership terminated plaintiff’s employment. The termination
form indicated that plaintiff was fired because he disobeyed a direct order from general manager
Hall, his CIT were way above corporate guidelines, and because there was a lack of trust. Boxes
on the form were checked for unsatisfactory conduct and failure to meet performance expectations.
-5-
On October 8, 2020, plaintiff filed a complaint with the Michigan Secretary of State, and it was
later redirected and eventually handled by the Michigan Department of State (MDOS). Plaintiff
alleged various improper or illegal actions by the dealership with respect to the purported forged
signatures on CIT, the processing of GPS-tracking software, and an assertion by plaintiff that the
dealership was charging customers for products that were not received or installed. Plaintiff
testified in his deposition that he was about to report the GPS-tracking issue to the state before he
was terminated. More specifically, plaintiff testified as follows:
Q. You testified that you were about to report the issue as it pertained
[to] the GPS tracking before you were terminated?
A. Yes, I had – I had the paperwork prepared. That’s why I was able to
file it so quickly thereafter.
Q. And in fact, it was filed only two days after you were terminated?
A. Right.
Plaintiff, however, acknowledged in his deposition that he did not tell anyone at the
dealership that he was going to file a report or complaint with the state. Plaintiff testified:
Q. Okay. Why is it that you decided to report this to the State of
Michigan on October 8th and after the termination of your
employment?
A. It was something that I tried to address from inside the company to
handle the legal aspect of it, and when I wasn’t able to succeed with
that, I went to the state?
Q. All right. So you said you “tried to address it within the company.”
Did you ever tell anybody within the company that you were going
to go to the state?
A. I did not. [Emphasis added.]
The MDOS investigated plaintiff’s claims, and sometime in early 2021, it issued the
following findings:
An MDOS case was opened after receiving information from a former
employee of the dealer with allegations that the dealer is signing documents for
customers, illegal GPS tracking and charging for products that customers do not
receive . . . . The complainant submitted a list of over 800 vehicles that were
reportedly purchased by customers where the dealer allegedly still had access to the
GPS. The complainant did not have allegations of a specific vehicle or item of his
own that he purchased and was submitting the complaint to make the MDOS aware
of the alleged activities. The RMD Director requested and specified three files to
be reviewed from the list submitted by the complainant. . . . A field investigation
was conducted where the General Manager, Al Hall, was interviewed. Mr. Hall
-6-
provided the requested files for a records inspection. Mr. Hall disputed the
allegations of 1) dealer accessing the GPS after a customer purchases a vehicle, 2)
signing documents for the customer or falsifying a customer’s signature, and 3)
charging customers for add-ons that are not installed. Mr. Hall stated that all of their
inventory does have a GPS installed on the vehicle, but the service is transferred to
the customer once the vehicle is purchased and the dealer can no longer track it.
Mr. Hall stated customers have the option of purchasing or declining the GPS
service called Theft Patrol and provided records of the option where the customer
accepts or declines. Mr. Hall was informed to ensure that GPS tracking cannot be
accessed by the dealer once a customer purchases a vehicle. Mr. Hall sent the dealer
staff an email with procedures to ensure the dealer cannot access the GPS after
purchase. The allegations of the dealer signing documents for the customer or
falsifying a customer’s signature were not substantiated and Mr. Hall disputed this
claim. No evidence of varying signatures in the files were observed. The allegation
of the dealer charging customers for add-ons that were not installed was not
substantiated and Mr. Hall disputed this claim. . . . .
The MDOS did find two technical violations in which there was a failure by the dealership to
properly complete form RD-108 in relation to the sale or lease of two vehicles.
On January 5, 2021, plaintiff filed a complaint against the dealership, and he later filed an
amended complaint on March 3, 2021. In the amended complaint, plaintiff alleged claims of
wrongful discharge in violation of public policy, wrongful termination under the WPA, a hostile
work environment under the Elliott-Larsen Civil Rights Act (CRA), MCL 37.2101 et seq.,
retaliatory discharge under the CRA, and intentional infliction of emotional distress (IIED). Much
of the lower court proceedings revolved around the dealership’s attempt to obtain answers to a first
set of interrogatories and to obtain documents in response to a first request for production of
documents. On June 24, 2021, a stipulated order compelling discovery was entered, requiring
plaintiff to answer the interrogatories and to produce the requested documents. On September 8,
2021, the dealership moved to dismiss plaintiff’s action on the basis that he had failed to fully and
completely answer the first set of interrogatories and failed to fully and completely comply with
the first request to produce documents. By order dated September 20, 2021, the trial court did not
dismiss plaintiff’s action, but it did compel plaintiff to answer certain interrogatories and to
produce certain documents. Pertinent here, plaintiff gave the following reply to a document
production request:
Upon a diligent search[,] Plaintiff does not have in his possession notes,
writings, memoranda, emails, correspondence, tape recordings, videotapes,
calendars, documentary evidence, or other recordings, documenting,
memorializing, reflecting or concerning any conversations or communications of
any type between Plaintiff and/or his agents and any present or former member,
officer, director, employee or agent of [the dealership], concerning the events
complained of in the Complaint including all such materials communicated, stored
or maintained in the form of electronic media.
Plaintiff took a general position during discovery that he had lost access to substantial information
and documents when he was terminated.
-7-
On January 19, 2022, the dealership moved for summary disposition. With respect to the
WPA claim, the dealership argued that the claim was untimely because it was not filed within 90
days after the alleged violation, that there was no causal connection between the protected activity
and the termination, especially considering that plaintiff told no one that he was going to lodge a
complaint with the state, and that plaintiff could not establish pretext in the face of the dealership’s
valid reasons for the firing. The dealership additionally contended that it was entitled to summary
disposition with regard to the remaining claims. Plaintiff responded to the motion challenging
each of the dealership’s arguments regarding the WPA claim. Plaintiff conceded that the claim of
wrongful discharge failed because the WPA is the exclusive remedy when considered in
conjunction with any common-law claim of wrongful discharge. And although plaintiff presented
arguments in support of his CRA claims, he agreed to their dismissal at the summary disposition
hearing because he was not a member of a protected class. As to the IIED claim, plaintiff asserted
that it was a viable claim; however, the court later determined as a matter of law that there was no
behavior that could be characterized as outrageous, which ruling plaintiff does not challenge on
appeal. With regard to the parties’ specific arguments associated with the WPA claim, we shall
discuss them in the analysis section of this opinion to avoid redundancy, but only to the extent that
they are relevant to the resolution of this appeal.
At the hearing on the motion for summary disposition held on February 9, 2022, the trial
court entertained the parties’ arguments, dismissed the non-WPA claims, and then summarily
dismissed plaintiff’s WPA claim, reasoning as follows:
[I] could see that an employer might reach the conclusion on its own based
on a plaintiff’s or an employee’s constant complaining about illegal activity that
the employee planned to make a complaint to the authorities about the illegal
activity. But, that as [defense counsel] points out is not the standard under the
[WPA].
In order for the plaintiff to proceed on that [claim] there has to be some
evidence that would be sufficient to prove by clear and convincing standard that the
employer knew that he was about to make a report and terminated him before that
report could be made. And, there’s nothing on this record that – that suggests that
the employer knew or suspected that the plaintiff was going to make a report to any
authorities and the – the plaintiff disavowed having told anybody that he was going
to make a complaint.
On those facts even giving the benefit of all reasonable doubt to the non-
moving party, the plaintiff, I don’t see that plaintiff has stated a claim upon which
relief can be granted and has not supported it with the factual developments to
defeat MCR 2.116(C)(10) so I will grant summary disposition on [the WPA claim]
as well which . . . brings us to summary disposition on all counts.
On February 25, 2022, the trial court entered an order granting the dealership’s motion for
summary disposition for the reasons stated on the record. On February 28, 2022, plaintiff moved
for reconsideration, arguing that he had in fact told the dealership on September 25, 2021, which
was 11 days before the termination, that he was going to inform the state of the dealership’s
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unethical behavior. Plaintiff attached—for the first time—the text messages between plaintiff and
Tillman from September 25, 2020, which, again, included in part this statement by plaintiff:
[Y]ou really have no idea how badly I still want to get a lawyer involved at
this point. If I didn’t work there I’d have already been to the police and called the
state about it.
In a cursory order, the trial court denied the motion for reconsideration, concluding that plaintiff
was presenting the same arguments already ruled on by the court. The record does not reveal
whether the trial court took into consideration the text messages.
II. ANALYSIS
A. ARGUMENTS ON APPEAL
On appeal, plaintiff states that his “cause of action rested on whether he informed his
employer before his termination that he was going to report their questionable behavior to the State
thus allowing him to avail himself of the [WPA] lawsuit.” Plaintiff argues that a mere 11 days
before the termination, he unambiguously informed the dealership—specifically Tillman—that he
was going to go to the state and the police and get the lawyers involved. Plaintiff also vaguely
contends that “[u]pon belief, [he] discussed the contents of the report filed with Mr. Hall prior to
[p]laintiff[‘s] termination.”4 Plaintiff maintains that a causal connection existed between the
protected activity, i.e., being about to report a violation or suspected violation of law, and his
termination. Plaintiff further argues that the proffered reasons for the dealership’s decision to
terminate him were not worthy of any credence.
The dealership argues that the trial court did not abuse its discretion by denying plaintiff’s
motion for reconsideration given that plaintiff presented alleged communications in the form of
text messages for the first time on reconsideration. The dealership contends that we should
disregard the alleged text messages attached to plaintiff’s brief on appeal due to his failure to
produce them before the trial court decided the motion for summary disposition. The dealership
also maintains that the trial court properly dismissed the WPA claim because plaintiff cannot
establish that any alleged protected activity was causally connected to his termination. The
dealership further asserts that plaintiff did not engage in any protected activity before the
termination, that the dealership was not affected by plaintiff’s post-termination report, that plaintiff
was not about to report a suspected violation of law, and that the alleged text messages between
plaintiff and Tillman did not show that plaintiff was about to file a report or complaint. The
dealership next argues that the WPA claim fails because plaintiff cannot establish pretext. The
dealership additionally posits that the WPA claim was properly dismissed against Ken Garff
Automotive, LLC, and Telegraph Chrysler Dodge Jeep Ram of Taylor because neither were
plaintiff’s employer. Finally, and there is no dispute on this matter, the dealership contends that
plaintiff abandoned all the other claims.
4
We note that there is no documentary evidence supporting this assertion. Hall passed away on
April 29, 2021, which was after plaintiff filed the lawsuit.
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B. STANDARD OF REVIEW AND PRINCIPLES REGARDING MOTIONS FOR
SUMMARY DISPOSITION AND RECONSIDERATION
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). We also review
de novo questions with respect to the interpretation and application of a statute. Estes v Titus, 481
Mich 573, 578-579; 751 NW2d 493 (2008).5 This Court reviews “a trial court’s decision on a
motion for reconsideration for an abuse of discretion.” Frankenmuth Ins Co v Poll, 311 Mich App
442, 445; 875 NW2d 250 (2015). “[A]n abuse of discretion occurs only when the trial court’s
decision is outside the range of reasonable and principled outcomes.” Saffian v Simmons, 477
Mich 8, 12; 727 NW2d 132 (2007).
In Anderson v Transdev Servs, Inc, 341 Mich App 501, 506-507; 991 NW2d 230 (2022),
this Court set forth the guiding principles in analyzing a motion brought pursuant to MCR
2.116(C)(10):
MCR 2.116(C)(10) provides that 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.” A motion brought pursuant to MCR 2.116(C)(10) tests the factual support for
a party’s action. “Affidavits, depositions, admissions, or other documentary
evidence in support of the grounds asserted in the motion are required . . . when
judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such
evidence, along with the pleadings, must be considered by the court when ruling on
the (C)(10) motion, MCR 2.116(G)(5). “When a motion under subrule (C)(10) is
made and supported . . ., an adverse party may not rest upon the mere allegations
or denials of his or her pleading, but must, by affidavits or as otherwise provided in
this rule, set forth specific facts showing that there is a genuine issue for trial.”
MCR 2.116(G)(4).
5
In Slis v Michigan, 332 Mich App 312, 335-336; 956 NW2d 569 (2020), this Court recited the
well-established principles regarding statutory interpretation, stating as follows:
This Court’s role in construing statutory language is to discern and ascertain
the intent of the Legislature, which may reasonably be inferred from the words in
the statute. We must focus our analysis on the express language of the statute
because it offers the most reliable evidence of legislative intent. When statutory
language is clear and unambiguous, we must apply the statute as written. A court
is not permitted to read anything into an unambiguous statute that is not within the
manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain
statutory language or substitute its own policy decisions for those decisions already
made by the Legislature. [Citations omitted.]
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A trial court may grant a motion for summary disposition under MCR
2.116(C)(10) if the pleadings, affidavits, and other documentary evidence, when
viewed 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 reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ. The trial court is not permitted
to assess credibility, weigh the evidence, or resolve factual disputes, and if material
evidence conflicts, it is not appropriate to grant a motion for summary disposition
under MCR 2.116(C)(10). Like the trial court’s inquiry, when an appellate court
reviews a motion for summary disposition, it makes all legitimate inferences in
favor of the nonmoving party. Speculation is insufficient to create an issue of fact.
A court may only consider substantively admissible evidence actually proffered by
the parties when ruling on the motion. [Quotation marks, citations, and brackets
omitted.]
“Generally, and without restricting the discretion of the court, a motion for rehearing or
reconsideration which merely presents the same issues ruled on by the court, either expressly or
by reasonable implication, will not be granted.” MCR 2.119(F)(3). The party seeking
reconsideration “must demonstrate a palpable error by which the court and the parties have been
misled and show that a different disposition of the motion must result from correction of the error.”
Id. There is no abuse of discretion when a court denies a motion for reconsideration that rests on
evidence that could have been presented the first time the pertinent issue was raised. Churchman
v Rickerson, 240 Mich App 223, 233; 611 NW2d 333 (2000). “As a general rule, an issue is not
preserved if it is raised for the first time in a motion for reconsideration in the trial court.” George
v Allstate Ins Co, 329 Mich App 448, 454; 942 NW2d 628 (2019).
C. WPA FRAMEWORK
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. [Emphasis added.]
In this case, plaintiff’s WPA theory was that he was terminated by the dealership because he was
about to report the dealership’s actions concerning the GPS-tracking software and the alleged
forged CIT. With respect to an about-to-report WPA claim, MCL 15.363(4) provides that “[a]n
employee shall show by clear and convincing evidence that he or she or a person acting on his or
her behalf was about to report, verbally or in writing, a violation or a suspected violation of a law
of this state, a political subdivision of this state, or the United States to a public body.” (Emphasis
added.)
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In Wurtz v Beecher Metro Dist, 495 Mich 242, 251-252; 848 NW2d 121 (2014), our
Supreme Court explained:
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) [T]he 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. [Citations omitted.]
“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 whistleblowing
act and the employer’s adverse employment action.” Debano-Griffin v Lake Co, 493 Mich 167,
176; 828 NW2d 634 (2013) (applying the burden-shifting framework of McDonnell Douglas Corp
v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 [1973]). A plaintiff may present a rebuttable
prima facie case on the basis of proofs from which a finder of fact could reasonably infer that the
plaintiff was the victim of unlawful retaliation for purposes of the WPA. Debano-Griffin, 493
Mich at 176. If a plaintiff establishes a prima facie case, a presumption of retaliation arises. Id.“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. Merely raising a triable issue that the employer’s proffered reason was pretextual does not
suffice; rather, it must be shown that it was a pretext for unlawful retaliation. Id.With respect to the “causal connection” element of a prima facie WPA case, a temporal
relationship, in and of itself, does not demonstrate a causal connection between the protected
activity at issue and the adverse employment action. Id. at 177. Something more than a temporal
connection is required to show causation when retaliation is claimed. Id. In Kaufman & Payton,
PC v Nikkila, 200 Mich App 250, 257-258; 503 NW2d 728 (1993), this Court observed:
An employer’s subjective fear . . . will not substitute for some form of notice
of threatened action. Instead, an employer is entitled to objective notice of a report
or a threat to report by the whistleblower. Neither Kaufman’s nor the firm’s
knowledge that Nikkila had retained counsel, together with other unspecified
evidence, yields an inference that the firm believed before she resigned
[constructive discharge] that she would report her complaints to responsible
agencies.
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And in Chandler v Schlumberger, 214 Mich App 111, 117; 542 NW2d 310 (1995), aff’d 456 Mich
395 (1998), this Court, referring to Kaufman & Payton, stated:
[T]he problem with the counterplaintiff’s case in Kaufman & Payton was
the lack of a causal connection between the alleged constructive discharge and
protected activity under the WPA due to the employer’s apparent lack of belief or
knowledge of any protected activity. In other words, if the employer did not believe
or know of the employee’s protected activity, it would be difficult to imagine how
that could have been the basis for discharge.[6]
D. DISCUSSION AND RESOLUTION
We hold that plaintiff failed as a matter of law to establish a prima facie case under the
WPA because there was no evidence showing a causal connection between plaintiff’s conduct in
preparing to report a violation or suspected violation of law and his termination.
Examining this case at the point of summary disposition, we find that there was no evidence
that plaintiff told anyone connected to the dealership that he was about to lodge a report with the
state before the termination. Indeed, plaintiff testified that he “did not” ever tell anybody within
the dealership that he was going to go to the state with his grievances. And as part of discovery,
plaintiff indicated that after a diligent search, he did not have in his possession any type of
documentary evidence concerning the events that led him to file the lawsuit against the dealership.
Plaintiff asserts “upon information and belief” that he discussed the report made to the state with
Hall before plaintiff was fired, but he cannot verify this “belief” because of Hall’s untimely death.
There is no documentary evidence supporting this claim, and plaintiff’s own testimony wholly
contradicts the assertion. Moreover, plaintiff attached his own affidavit to the response to the
dealership’s motion for summary disposition, but there were no averments asserting that he had
communicated to anyone before the termination that he was about to report a violation or suspected
violation of law. There was no contention that plaintiff had spoken to Hall about submitting a
complaint to the state before or after plaintiff was fired. We note that even had plaintiff made such
an averment in his affidavit, it likely could not have overcome his concession in his deposition that
he told no one. See Dykes v Wm Beaumont Hosp, 246 Mich App 471, 480; 633 NW2d 440 (2001)
(parties cannot contrive factual issues by simply asserting the contrary in an affidavit after having
given damaging deposition testimony).
6
We also note this Court’s ruling in Roberson v Occupational Health Ctrs of America, Inc, 220
Mich App 322, 326; 559 NW2d 86 (1997), wherein the panel found:
An employer is entitled to objective notice of a report or a threat to report
by the whistleblower. Plaintiff argues that she provided evidence that she had told
a manager that she was about to report the conditions of the building to the
Occupational Health and Safety Administration . . . and was terminated as a result.
We find that plaintiff failed to provide evidence to demonstrate a question of fact
regarding this issue. [Quotation marks, citations, and brackets omitted.]
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Plaintiff did present the September 25, 2020 text messages between him and Tillman when
plaintiff filed his motion for reconsideration. To the extent that the trial court decided not to
consider the text messages, which may or may not have been the case, it would not constitute an
abuse of discretion because plaintiff had not submitted them earlier despite having the opportunity
to do so. See Churchman, 240 Mich App at 233. Additionally, the issue regarding whether the
text messages created an issue of fact on the element of causation was not properly preserved
because it was not raised until the motion for reconsideration was filed. See George, 329 Mich
App at 454. Thus, for purposes of preservation requirements in civil litigation, the issue was
waived. See Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC, ___ Mich App ___, ___;
___ NW2d ___ (2023) (Docket No. 359090); slip op at 3.
Nevertheless, even if we consider the text messages, they do not create a genuine issue of
material fact on the issue whether a causal connection existed between plaintiff’s protected activity
and his termination. Again, the pertinent portion of plaintiff’s text messages provided:
[Y]ou really have no idea how badly I still want to get a lawyer involved at
this point. If I didn’t work there I’d have already been to the police and called the
state about it.
This language simply does not indicate or suggest that plaintiff was about to report an illegal action
to the police, state, or a lawyer. Indeed, the message reflects a mindset by plaintiff that he was not
prepared to lodge a report or complaint with anyone about the dealership so long as he remained
employed at the dealership. Furthermore, when this particular text language is considered in
context with the overall text conversation between plaintiff and Tillman, plaintiff’s frustration and
his comments about contacting an attorney, the police, and the state were he not an employee were
clearly related to the debate about insurance on the newly-leased car, not the CIT and GPS matters,
which were the topics in the report to the state. Plaintiff’s WPA theory was not that he was
discharged because he was about to report a violation or suspected violation of law connected to
the no-fault insurance dispute, assuming that the subject even concerned a legal violation. We also
question whether the GPS-related matter had any connection whatsoever to a violation of a law,
regulation, or rule. And the fact that the text messages were exchanged just 11 days before plaintiff
was fired cannot in and of itself demonstrate the requisite causal connection. See Debano-Griffin,
493 Mich at 177.
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As this Court has observed, if an employer did not know of an employee’s protected
activity, it would be difficult to imagine how that engagement in protected activity could have
been the basis for a termination. Chandler, 214 Mich App at 117. In sum, we hold that the trial
court did not err by granting the dealership’s motion for summary disposition, nor did the court
abuse its discretion by denying plaintiff’s motion for reconsideration. There simply is insufficient
evidence on the causal-connection element relative to establishing a prima facie case under the
WPA, making it unnecessary for us to explore issues regarding the validity of the grounds for
termination and pretext.
We affirm. Having fully prevailed on appeal, the dealership may tax costs under MCR
7.219.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Jane E. Markey
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