Appeal (09.19.17)

RECEIVED by MSC 9/19/2017 4:23:54 PM
STATE OF MICHIGAN
IN THE MICHIGAN SUPREME COURT
DENISE M. KOETS, and

SCOTT A. KOETS,
Plaintiffs-Appellants,
Supreme Court Case No. ______
vs. Court of Appeals Case No. 333347
Lower Court Case No. 15-000010-CD
AMERICAN LEGION,
DEPARTMENT OF MICHIGAN
THE KIENBAUM LAW GROUP, P.C. 21 KERCHEVAL, SUITE 240 GROSSE POINTE FARMS, MICHIGAN 48236-3644
Defendant-Appellee.
THE KIENBAUM LAW GROUP, P.C. LOOMIS, EWERT, PARSELY, DAVIS, &
Karen S. Kienbaum (P25283) GOTTING, P.C.
Daniel G. Galant (P26644) Kevin J. Roragen (P56510)
Attorney for Plaintiffs-Appellants Attorneys for Defendant-Appellee
21 Kercheval Ave., Ste. 240 124 W. Allegan Street, Suite 700
Grosse Pointe Farms, MI 48236 Lansing, Michigan 48933-1784
(313) 967-0700; fax (313) 967-0244 (517) 482-2400; fax (517) 853-8671
ksk@ksklaw.com kjroragen@loomislaw.com
PLAINTIFFS-APPELLANTS APPLICATION FOR LEAVE TO APPEAL
NOW COME Plaintiffs-Appellants, Denise M. Koets and Scott A. Koets, by and through
their attorneys, THE KIENBAUM LAW GROUP, P.C., and apply for leave to appeal from the adverse
decision of the Michigan Court of Appeals on August 8, 2017, pursuant to MCR 7.303(B)(1) and
MCR 7.305(B)(5)(a), because the decision was clearly erroneous, and will cause material injustice
if the decision is allowed to stand.

For the reasons stated above, and in this application, Plaintiffs-Appellants pray that this
Court grant its Application for Leave to Appeal, and remand this case back to the trial court for
trial, or whatever other or further relief this court deems reasonable and just.
Respectfully submitted,
Dated: September 19, 2017 /s/ Karen S. Kienbaum_____________

THE KIENBAUM LAW GROUP, P.C.
Karen S. Kienbaum (P25283)
Daniel G. Galant (P26644)
Attorney for Plaintiffs-Appellants
21 Kercheval Ave., Ste. 240

Grosse Pointe Farms, MI 48236
(313) 967-0700; fax (313) 967-0244
ksk@ksklaw.com
2
TABLE OF CONTENTS
INDEX OF AUTHORITIES.......................................................................................................... iii
STATEMENT OF THE JUDGMENT APPEALED FROM ......................................................... v
QUESTIONS PRESENTED FOR REVIEW ................................................................................ vi
BRIEF IN SUPPORT OF ............................................................................................................... 1
APPLICATION FOR LEAVE TO APPEAL ................................................................................. 1
I. Introduction and Grounds for Application .......................................................................... 1
II. Procedural History .............................................................................................................. 2

III. Statement of Facts ............................................................................................................... 3
A. Plaintiff Denise Koets ............................................................................................. 3
B. Scott Koets Disability Claim ................................................................................. 4
C. The Second Performance Evaluation and Criticism of Denise Koets Work ......... 8
D. Defendant Engages in Write-ups of Plaintiffs Work as a Pretext to

Terminate Her. ........................................................................................................ 9
1. Write-up on Release of Confidential Information .................................... 10
2. Write-up on IRS Audit Activity................................................................ 11
3. Write-up on Raffle Snafu .......................................................................... 12
4. The Write-up on Undeposited Checks ...................................................... 14
E. American Legion Disregard of Veterans Rights and Reports by Plaintiff .......... 15
IV. Arguments ......................................................................................................................... 19
A. ARGUMENT ONE: PLAINTIFF-APPELLANT DENISE KOETS HAS

ALLEGED A CLAIM FOR RETALIATORY DISCHARGE UNDER THE
MICHIGAN WHISTLEBLOWERS PROTECTION ACT. ............................... 20
Principle Point of Argument: The Court of Appeals, instead of

reviewing Defendants Motion for Summary Disposition in the light
most favorable to the Plaintiffs as the nonmoving party, improperly
reviewed the granting of this motion as a trial court that had heard all
the evidence in the case, reviewed testimony, and weighed the
credibility of the witnesses. In fact, Plaintiffs established material
i
question of facts whether the American Legion violated the
Whistleblowers Protection Act when it retaliated against her by
discharging her from her employment after she had informed its
management of its mishandling of veterans claims.
1. The Standard for Summary Disposition Under MCR 2.116(C)(10)......... 20
2. The Parameters of the WPA ..................................................................... 22
3. The American Legion is a Public Body under the WPA .......................... 22
4. Plaintiff Denise Koets engaged in protected activity in Reporting

Violations of the Veteran Administration Regulations to Defendant.
................................................................................................................... 23
5. Plaintiff Has Met the WPA Burden of Proof ............................................ 23

B. ARGUMENT TWO: PLAINTIFF-APPELLANT SCOTT KOETS HAS

PLEADED A TRIABLE CLAIM FOR LOSS OF CONSORTIUM.................... 29
Principle Point of Argument: Plaintiff Scott Koets has made out a

derivative claim of loss of consortium to Plaintiff Denise Koets WPA
claim.
C. ARGUMENT THREE: PLAINTIFFS-APPELLANTS WERE DENIED

DUE PROCESS OF LAW WHEN THE TRIAL COURT DID NOT
PROVIDE THEM WITH AN OPPORTUNITY TO FILE A RESPONSIVE
PLEADING TO DEFENDANT-APPELLEES MOTION FOR
RECONSIDERATION ......................................................................................... 29
Principle Point of Argument: In denying Plaintiffs the right to respond

to Defendants Motion for Reconsideration, the trial court denied and
the Court of Appeals affirmed that denial of Plaintiffs right under the
14th Amendment of the Constitution of the United States of America
and Article I, Section 17 of the State of Michigan Constitution of 1963
to due process of law.
V. Relief Sought .................................................................................................................... 33
ADDENDUM I EXHIBITS ....................................................................................................... 34
ii
INDEX OF AUTHORITIES
Cases
Armstrong v. Manzo, 380 U.S. 545, 552 (1965) .......................................................................... 32
Bernardino v. City of Saginaw, 499 Mich. 470; 886 N.W.2d 109, 111 (2016) ............................ 21
Berry v. In Your Golden Years, LLC, Case No. 323188 (Mich. Ct. App. Dec. 29, 2015) ... 27, 28,
34
Chandler v Dowell Schlumberger, Inc., 456 Mich. 395, 399; 572 N.W. 2d 210 (1998) .............. 23
Debano-Griffin v. Lake Co., 493 Mich. 167, 175; 828 N.W.2d 634 (2013) ................................ 21
Dennis v. Wexford County Sheriffs Dept., Case No. 325574 (Mi. Ct. of App. June 7,
2016) ........................................................................................................................... 26, 34
Dolan v Continental Airlines, 454 Mich. 373; 563 N.W.2d 23, 26 (1997) .................................. 22
Duffy v. Throwbridge, 335 So.2d 30, 32 (La. 1976) .................................................................... 32
FCC v. WJR, the Goodwill Station, Inc., 337 U.S. 265 (1949) .................................................... 31
Glover v. Pontiac Housing Commission, Case No. 281737 (Mi. Ct. of App. Dec. 30,
2008) ........................................................................................................................... 26, 34
Henry v. City of Detroit, 234 Mich. App. 405; 594 N.W.2d 107, 112-13 (1999) ........................ 24
Kemp v. Farm Bureau General Ins. Co. of Michigan, ___ Mich. ___; ____ N.W.2d ____
(M.Sup.Ct. June 15, 2017), slip op. pp. 4-5 ...................................................................... 20
Kuhn v Washtenaw County, 709 F.3d 612 (6th Cir. 2013) .......................................................... 24
Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1, 5-6; 890 N.W.2d 344 (2016) .............................. 20
Maiden v. Rozwood, 461 Mich. 109, 121; 597 N.W.2d 817 (1999) ...................................... 20, 21
McNeil-Marks v Midmichigan Medical Center-Gratiot, 316 Mich. App. 1; 891 N.W.2d

528, 538 (2016) ........................................................................................................... 25, 26
Mullane v Central Hanover Bank & Trust Co., 339 US 306, 315 (1950) .................................... 29
Parratt v. Taylor, 451 U.S. 527, 540 (1981) ................................................................................. 31
Pioneer State Mutual Insurance Co. v. Dells, 301 Mich. App. 368, 377; 836 N.W.2d 257
(2013) ................................................................................................................................ 21
Reed v Reed, 265 Mich App 131, 259; 693 NW2d 825 (2005) ................................................... 30
iii
Shallal v Catholic Social Services, 455 Mich. 604], 610; 566 N.W.2d 571 (1997) ..................... 23
Shaw v. City of Ecorse, 283 Mich. App. 1, 8; 770 N.W.2d 31 (2009) ......................................... 24
Spiek v. Dept of Transportation, 456 Mich. 331, 337; 572 N.W.2d 201 (1998)......................... 19
West v. General Motors Corp., 469 Mich. 177, 183; 665 N.W.2d 468 (2003) ...................... 21, 27
Statutes
MCL 15.362, et seq., The Michigan Whistleblowers Protection Act (WPA). ................. passim
Michigan Court Rules
MCR 2.116(C)(10).............................................................................................................. 9, 20, 21

MCR 2.119(F)(2) .......................................................................................................................... 30
MCR 2.119(F)(3) .......................................................................................................................... 30
MCR 7.203(A)(1) .......................................................................................................................... vi
MCR 7.303(B)(1) ............................................................................................................................ 2
MCR 7.305(B)(5)(a) ....................................................................................................................... 2
Regulations
38 CFR Section 14.632 ............................................................................................................. 4, 23
Constitutional Provisions
U.S. Const. Amend XIV .......................................................................................................... vi, 29
MI Const. 1963. Art I, 17 ...................................................................................................... vi, 29
iv
STATEMENT OF THE JUDGMENT APPEALED FROM
Plaintiffs-Appellants seek leave to appeal the Court of Appeals unpublished opinion of
August 8, 2017 in the matter of Denise M. Koets and Scott A. Koets v. The American Legion,
Department of Michigan, Court of Appeals Docket No. 333347, attached hereto as Exhibit 1. That
Judgment affirmed the Ingham County Circuit Courts May 23, 2016 grant of summary disposition
to the American Legion, attached hereto as Exhibit 2.

v
QUESTIONS PRESENTED FOR REVIEW
I. Whether Plaintiff-Appellant Denise Koets has alleged a claim for retaliatory discharge
under the Michigan Whistleblowers Protection Act?
Plaintiffs-Appellants say yes.

Defendant-Appellee says no.
The trial court said no.
The Court of Appeals held no.
II. Whether Plaintiff-Appellant Scott Koets has a claim for loss of consortium?

The trial court said no.

III. Whether Plaintiffs-Appellants were denied due process of law under the 14th Amendment
of the United States Constitution, and Article I, Section 17 of the State of Michigan
Constitution of 1963, when the trial court, applying MCR 7.203(A)(1), ruled on Defendant-
Appellees motion for without permitting Plaintiffs-Appellants an opportunity to file a
responsive pleading?

The trial court did not rule on this issue.
vi
BRIEF IN SUPPORT OF
APPLICATION FOR LEAVE TO APPEAL
I. Introduction and Grounds for Application
The American Legion is an iconic American institution. Since its Congressional charter in
1919, it has been a source of comfort, comradery, and information for veterans returning from war.
The Legion plays a key role for its members in applying for veterans benefits with the U.S.
Veterans Administration. Yet, even the best can fall down. Such happened in this case. It is
undisputed that the American Legion failed Scott Koets in processing his application for his
disability veterans benefits. In its failure, Denise Koets, an employee with the American Legion,
complained to her Legion management about its poor handling of her husbands case, and of other
veterans cases. Only after Scott Koets retained an attorney who contacted the Legion on its
failures in handling his application for benefits did the Legion commence to suddenly write-up
Denise for alleged poor employee performance. Ms. Koets responsibility for these performance
shortcomings was negligible to none, but the Legion management never discussed with her what
her side of these performance issues were. That did not stop Denise from continuing to inform
management about its failures in handling veteran claims. Until the attorneys letter arrived, she
had been viewed as a good Legion employee. Within weeks of the arrival of the letter, the Legion
retaliated against her and discharged her from her job. Its action violated MCL 15.362, et seq., The
Michigan Whistleblowers Protection Act (WPA) (attached hereto as Exhibit 6).
The trial court dismissed the Koets lawsuit when it granted the Legions Motion for
Summary Disposition through a Motion for Reconsideration. The Court of Appeals affirmed that
decision. Despite claiming to properly follow the appellate rules and the standard in reviewing the
American Legions Motion for Summary Disposition, the Court of Appeals did not do so. In
particular, it decided the appeal as if it were sitting as the trial court that had just heard all the
1
evidence presented to it, reviewed the testimony, weighed the credibility of the witnesses, and then
found for a party. The Court of Appeals ignored the substantive evidence presented by the non-
moving Plaintiffs-Appellants that genuinely, credibly challenged the material facts offered by the
American Legion. When the material facts presented by the Plaintiffs-Appellants are reviewed,
and considering the evidence in the light most favorable to them, doubts clearly are present and
reasonable minds would differ on the material facts. A jury of their peers is required to decide the
case as a finder of the facts, not appellate judges. Plaintiffs-Appellants apply for leave to appeal
from the adverse decision of the Michigan Court of Appeals on August 8, 2017, pursuant to MCR
7.303(B)(1) and MCR 7.305(B)(5)(a), because the decision was clearly erroneous, and will cause
material injustice if the decision is allowed to stand. Accordingly, Plaintiffs-Appellants request
that this honorable Court grant their application, reverse the Court of Appeals opinion below, and
remand the case to the trial court for trial.
II. Procedural History
On January 5, 2015, Plaintiffs-Appellants filed suit in Ingham County Circuit Court,
claiming that Denise Koets termination of her employment with the American Legion was
retaliation in violation of the Michigan Whistleblowers Protection Act (WPA), MCL 15.362,
et seq.; retaliation in violation of public policy; a termination without just cause in violation of
public policy; and a loss of consortium as to Scott Koets, Denise Koets husband.
On March 21, 2016, Ingham County Circuit Court Judge Rosemary Aquilina denied the
American Legions Motion for Summary Disposition. But on May 23, 2016, without permitting
the Koets to file any brief, the court granted the American Legions Motion for Reconsideration,
and granted it Summary Disposition.
2
On June 10, 2016, Plaintiffs-Appellants filed an appeal as of right to the Michigan Court
of Appeals. On August 7, 2017, the Court of Appeals affirmed the decision of the trial court1.
III. Statement of Facts
A. Plaintiff Denise Koets
Denise Koets was hired on January 11, 2011 as a Financial Administrative Assistant and
Human Resource Administrator. (See Exhibit C to Plaintiffs Response to Defendants Motion for
Summary Disposition, Job Description). Her performance was judged by her employer, the
American Legion, as excellent until an event in May 2014; she would thereafter be terminated that
October. An example of how highly her contributions were assessed can be found in the April 10,
2013 performance review completed by Adjutant Patrick Lafferty (Lafferty, her boss) (attached
hereto as Exhibit 10, and included in the lower court records as Exhibit D to Plaintiffs Response
to Defendants Motion for Summary Disposition), in which he notes:
Strengthsprofessional manner in which she represents the office and the Department
has a deep dedication to the financial welfare of the American LegionEnjoyable to work
with. Weaknessher goals of excellence sometimes causes her undue stress. (Has bright
future with Legion).
On May 30, 2014, an attorney representing Plaintiff Scott Koets sent the American Legion
a demand letter threatening litigation and claiming damages for the American Legions breach
of its fiduciary duty in handling his disability veterans benefits claim. (See letter dated May 30,
2014 from Attorney Deanne L. Bonner to Defendant, attached as Exhibit F to Plaintiffs Response
to Defendants Motion for Summary Disposition).
The Koets do not seek leave to appeal the Court of Appeals decision with respect to its
1
denial of Denise Koets public policy claim, which the Court of Appeals decided correctly.
3
Before the demand letter arrived, Plaintiff Denise Koets had repeatedly inquired, and
then vociferously complained, to Defendant regarding the handling of her husbands disability
claim; she pointed out to Defendants management that the loss of his claim and the delays and
failure to respond to legitimate inquiries that he experienced were grossly negligent, and that he
was not alone as such neglect was present not only in the processing of his claim, but also the
claims of other veterans. In addition, she identified to Defendants management other American
Legion business practices she believed needed correction because they were violations of the law.
All her inquiries, complaints, and suggestions were ignored. (See Exhibit I to Plaintiffs Response
to Defendants Motion for Summary Disposition, Deposition of Denise Koets, pp. 47-56; 59-61).2
The American Legion has never challenged Denise Koets claims that she brought her concerns
on the mismanagement of veterans claims to its management.
B. Scott Koets Disability Claim
Scott Koets, a sergeant in the Michigan National Guard for the past 22 years, was deployed
in Operation Iraqi Freedom. (See Exhibit E to Plaintiffs Response to Defendants Motion for
Summary Disposition, Deposition of Scott Koets, pp. 6-7). From that deployment, he incurred two
2
The Veterans Administration has rules and regulations related to the standards of conduct for
persons who work for organizations like the American Legion and who provide representation
before the Department. 38 CFR Section 14.632. Under this federal regulation, persons who provide
representation before the VA, such as persons working as American Legion on claims:
a. [S]hall faithfully execute their duties;
b. [A]re required to be truthful in their dealings with claimants and the VA;
c. Provide claimants with competent representation before VA. Competent
representation requires the knowledge, skill, thoroughness, and preparation
necessary for the representation.
d. An individual providing representation on a particular claim . . . shall not . . . violate
the standards of conduct as described in this section; circumvent a rule of conduct through
the actions of another; engage in conduct involving fraud, deceit, misrepresentation, or
dishonesty; delay, without good cause, the processing of a claim at any stage of the
administrative process; ; or engage in any other unlawful or unethical conduct.
4
injuries: the disability of PTSD, causing him to suffer from depression, flashbacks and sensitivity
to loud noises, and a disabling knee injury. (Exhibit E to Plaintiffs Response to Defendants
Motion for Summary Disposition, Deposition of Scott Koets, p. 8).
On March 21, 2012, Plaintiff Scott Koets, through VA Form 21-22, authorized the
American Legion to become his claims representative for disability benefits to process his claim,
and provided the American Legion with the necessary occupational and medical documentation to
meet VA standards. (See Exhibit C to Plaintiffs Complaint for a copy of the authorization).
Months went by, but Plaintiffs, despite numerous inquiries to responsible American Legion staff,
heard nothing. Eight (8) months after submitting his documentation, in November 2012, Plaintiff
learned from responses to his own inquiries to the VA in Washington, DC that no claim for his
benefits had ever been filed by the Legion. After being confronted, the Legion admitted that it had
violated VA rules and regulation when it had lost his paperwork; had never filed his claim; and,
had never attempted to notify him or his wife of their error, or taken any steps to resubmit records
or otherwise correct the situation. (See Exhibit F to Plaintiffs Response to Defendants Motion
for Summary Disposition, Deposition of Denise Koets, pp. 66-68).
As a consequence of Defendants conduct, both intentional and grossly negligent in
contradiction of their fiduciary duties, Plaintiff started the process all over again, and supplied the
Legion with duplicate paperwork and documentation. Then, on December 21, 2012, some nine (9)
months after the initial submissions, Plaintiffs claim was finally submitted by Defendant. (See
letter dated May 30, 2014 from Attorney Deanne L. Bonner to Defendant, attached as Exhibit F to
Plaintiffs Response to Defendants Motion for Summary Disposition). After a one-year delay, on
November 15, 2013, the VA granted Scott Koets disability claim; however, per the VAs policy,
5
benefits were retroactively paid back only to the December 2012 date of the refiling. (Exhibit F
to Plaintiffs Response to Defendants Motion for Summary Disposition).
The American Legions loss of his documents and the failure to timely identify the problem
or reinitiate another filing resulted in Plaintiff losing significant government benefits. (Exhibit F
to Plaintiffs Response to Defendants Motion for Summary Disposition). Plaintiff was
unsuccessful in getting the American Legion to make him whole for their negligence and breach
of duty to him. Next, he sought an attorneys advice. As noted, on May 30, 2014, his counsel wrote
the American Legion, threatening legal action if it did not pay Scott Koets the damages he had
incurred because of their complete disregard of their legal obligations to him to process his claim
in a proper and timely fashion. (Exhibit F to Plaintiffs Response to Defendants Motion for
Summary Disposition). A few months later, in late August 2014, an out of court settlement and a
compromise of Scott Koets damages tentatively resolved that claim. (Exhibit A to Plaintiffs
Response to Defendants Motion for Summary Disposition, Deposition of Patrick Lafferty, pp. 92-
93). However, from the time the attorneys letter was received in May 2014, dark clouds gathered
over Plaintiff Denise Koets in the workplace and she was terminated within weeks of the
settlement. The settlement had to be formally approved by the American Legions Personnel and
Finance Committee, and it met and did so on September 25, 2014. At the same meeting in which
the Personnel and Finance Committee approved the settlement, it also approved the termination of
Plaintiff Denise Koets. (See attached Exhibit 13 for a copy of the minutes from this meeting, which
was included in the lower court records as Exhibit R to Defendants Motion for Summary
Disposition).
At the hearing on the Motion for Summary Disposition on February 26, 2016, the trial court
found that this document on the Committee minutes established direct evidence of the causation
6
element of Plaintiffs WPA claim (See the transcript of the Summary Disposition hearing dated
February 26, 2016, at page 20). The Court of Appeals, at pages 5 and 6 of its opinion, found no
direct evidence.
On August 29, 2014, Ronald Runyan (Runyan) became the new Adjutant, succeeding
Lafferty who was retiring, but whose employment contract was paid in full through mid-2015.
(Exhibit G to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of
Ronald Runyan, p. 48; and Exhibit A to Plaintiffs Response to Defendants Motion for Summary
Disposition, Deposition of Patrick Lafferty, p. 10). Runyan was advised of the demand letter, and
that Scott Koets claim had just settled his legal claim with a confidential agreement in place.
Ronald Runyan, pp. 79-80). It is Runyan who officially terminated Plaintiff Denise Koets. As
noted by the Court of Appeals at page 8 of its decision, the record reflects that Runyan, in deciding
to fire plaintiff, considered her unsatisfactory job performance and her failure to rectify her
shortcomings. Absent from the Courts decision is that Runyan obtained concurrence from the
Finance Committee to fire her on September 25th, less than a month after assuming his position,
and at the same meeting when the Finance Committee approved settlement with her spouse, and
then, shortly thereafter, followed up on that decision. He reports that he repeatedly found her
job performance lacking in situations that a jury, as finders of fact, could and likely will determine
were pretexts to retaliate against her. The Court of Appeals statement, at page 8, that plaintiff
presented no evidence that those in charge of the decision to terminate her employment knew that
plaintiff had made any of the reports is belied by Plaintiff repeatedly informing Adjutant Lafferty
of the American Legions failures in handling veterans claims, and by Adjutant Runyans
retaliatory actions toward Plaintiff in his handling of her employee discipline. Both adjutants were
7
involved in discipling Plaintiff, and both were knowledgeable about Plaintiffs husbands legal
claim, and were involved in its settlement. (See attached Exhibit 13 for a copy of the minutes from
this meeting, which was included in the lower court records as Exhibit R to Defendants Motion
for Summary Disposition).
C. The Second Performance Evaluation and Criticism of Denise Koets Work
Seven weeks after the demand letter was sent in May, Plaintiff received her first negative
performance review from Adjutant Lafferty. Defendants management had not issued Plaintiff any
prior written or verbal warnings, disciplines, or any counseling prior to the unexpected negative
review. This negative review was written by the same Adjutant who just a few months prior had
lauded her work, ethics, and competence. This is also the same Adjutant who had previously
brushed off her concerns about how veterans claims were being lost and incorrectly processed,
and had disregarded her suggestions on improvement of business practices. (See attached Exhibit
11 for a copy of the July 21, 2014 performance review, included in the lower court records as
Exhibit H to Plaintiffs Response to Defendants Motion for Summary Disposition).
At the review, Plaintiff requested that Lafferty illustrate examples of her poor
performance. Lafferty declined to explain, and simply read from the review. Plaintiff asked for a
copy of the review, but her request was declined. Lafferty only confirmed that she would get no
raise, and ended the meeting. (Exhibit I to Plaintiffs Response to Defendants Motion for
Summary Disposition, Deposition of Denise Koets, pp. 133-134).
Subsequently, two American Legion service representatives were given orders not to speak
to either Plaintiff or her husband at the specific direction of Adjutant Lafferty. (Exhibit I to
Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of Denise
Koets, p. 85). Adjutant Lafferty basically confirmed/admitted that such an order had been given,
8
and gave the excuse that he didnt want her fellow employees to distract Plaintiff from her work.
(Exhibit A to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of
Patrick Lafferty, pp. 88-90).
As Denise Koets recounted the reaction from the Legion management upon receipt of the
attorney letter, And pretty much the minute that letter hit, that was the end for me I got ousted
from the executive committee meetings with no explanation, and I just got totally ignored.
(Exhibit I to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of
Denise Koets, p. 85). Her depositional testimony is in sharp contrast from the Legions version of
the matter. The Court of Appeals adopted the Legions version in its decision, at p. 2, hook line
and sinker. Despite evidence to the contrary, they found that Denise Koets was orally told about
her problems as they arose by her Legion supervisor, Adjutant Lafferty. No mention of the
shunning, or lack of detail, or other analysis is present in their erroneous conclusion. Since the
time of the letters arrival, Denise Koets was told by a coworker that Legion management had
indicated Denise knew too much and they were going to get rid of [her] Id. at 85-86.
D. Defendant Engages in Write-ups of Plaintiffs Work as a Pretext to

Terminate Her.
After Plaintiffs July 2014 evaluation, Defendant engaged in creating write-ups to paper
Plaintiffs personnel file. Notably, one write-up was presented just before her termination, and the
others on her last day of work. In discussing each of these write-ups in its decision, the Court of
Appeals construed these events favorably to the movant American Legion, accepting as true its
version of facts, even though the motion before the trial court was for summary disposition under
MCR 2.116(C)(10), and as such, the non-movant Plaintiffs-Appellants version of the facts,
supported by the record, had to be viewed favorably.
9
1. Write-up on Release of Confidential Information
Plaintiff prepared a financial packet containing wage information, as per protocol, for the
annual meeting of the American Legions State Finance Committee. Plaintiff also prepared another
packet for those in general attendance at the annual meeting. The version for the general
membership did not contain specific wage information. Roger Webster, a Committee Member and
the former Finance Committee Chairman directed Ms. Koets to provide to the members in general
attendance at the annual meeting with the Finance Committees version of the packet. On his
direction, the American Legions Public Relations Director handed out the packet to the general
audience. (Exhibit I to Plaintiffs Response to Defendants Motion for Summary Disposition,
Deposition of Denise Koets, pp. 124-127). Two employees had their nominal pay raises disclosed
in the packet that was distributed at the annual meeting. They complained, indicating that they
were embarrassed that others knew what they were making. On July 22, 2014, some two months
after receipt of the demand letter, and before settlement of the claim of Scott Koets in September,
Adjutant Lafferty wrote up Plaintiff for the release of confidential salary information. (see
attached Exhibit 12 for a copy of this write-up, included in the lower court records as Exhibit J to
Plaintiffs Response to Defendants Motion for Summary Disposition). Laffertys write-up
acknowledged that Plaintiff did not hand out the confidential information, nor had she included
that information in the original packet for the general membership. But incredibly, he blamed her
for the error because she did not prevent its distribution. (Exhibit A to Plaintiffs Response to
Defendants Motion for Summary Disposition, Deposition of Patrick Lafferty, pp. 42-43). Mr.
Runyan claimed that this incident did not enter his decision to terminate Plaintiff. (Exhibit G to
Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of Ronald
Runyan, pp. 38). Yet, the Court of Appeals, in its decision, at page 2, restated and affirmed the
10
Legions actions in this incident as if it was factual, leaving the reader without any idea that in fact
Plaintiff was innocent of any wrongdoing.
Lafferty subsequently retired, and on August 29, 2014, Runyan was appointed as the new
Adjutant. After a mere twenty-eight (28) days in office, Runyan, together with Lafferty, who was
still on the rolls for months, confidently sought Plaintiffs termination before the Personnel and
Finance Committee. The September 24th minutes of that meeting discuss Plaintiff Denise Koets
termination, but the first order of business had been the Committees approval to settle Plaintiff
Scott Koets civil claim against the American Legion for its loss and mishandling of his VA claim.
(See attached Exhibit 13 for a copy of the minutes from this meeting, which was included in the
lower court records as Exhibit R to Defendants Motion for Summary Disposition).
2. Write-up on IRS Audit Activity
On September 8, 2014, the U.S. Internal Revenue Service scheduled an on-site audit of
Defendant. Plaintiff had collected financial data for the audit and put the data on an encrypted CD-
ROM. A fellow employee mailed the disc to the IRS through the U.S. Mail. The CD-ROM arrived
at the IRS offices before the audit, but the agent who was conducting the audit had left for the field
before arriving at the Legion and did not have the CD-ROM with him. (Exhibit G to Plaintiffs
Response to Defendants Motion for Summary Disposition, Deposition of Ronald Runyan, pp. 41-
42). The routine audit was conducted without any particular concerns; the information the auditor
wanted was available on site, and available on the CD-ROM when he returned to his office.
On September 30, 2014, five days after the Legion approved of Plaintiffs discharge and
some three weeks after the actual audit, Adjutant Runyan wrote her up for mailing the audit data
through the U.S. Mail. Notably, no encrypted data was ever released to third parties. On this same
day, Plaintiff was sent home on administrative leave, never to return. (Exhibit G to Plaintiffs
11
Response to Defendants Motion for Summary Disposition, Deposition of Ronald Runyan, pp. 18-
19). Even though there was no policy or protocol regarding mail, Runyan stated that he believe[d]
Mrs. Koets to be in violation of private and confidential information. She should have taken steps
to ensure its secure and timely arrival to the IRS. But, Runyan admitted that he does not know of
any of the Defendants policies or steps that were violated or ignored by Plaintiff. (Exhibit G to
Runyan, pp. 42-44). Plaintiff was never given an opportunity to respond or discuss the situation
with Runyan.
Again, at page 3 of the Court of Appeals decision, it recounts this incident, assuming
grossly inappropriate conduct on her part without any discussion of Plaintiffs version of the
matter. In a Motion for Summary Disposition, such as reviewed herein, the non-movant Plaintiffs
position that is supported by the record is to be reviewed in the most favorable light.
3. Write-up on Raffle Snafu
On September 27, 2014, two days after the Personnel and Finance Committee had approved
her termination, Defendant held its annual fall raffle at a hotel in Muskegon. (Exhibit G to
Runyan, pp. 18-19). Adjutant Lafferty had applied for the raffle license (Exhibit A to Plaintiffs
Response to Defendants Motion for Summary Disposition, Deposition of Patrick Lafferty, pp. 61-
62) as he and the new Adjutant, Runyan, were in charge of the raffle. (Exhibit I to Plaintiffs
Response to Defendants Motion for Summary Disposition, Deposition of Denise Koets, pp. 144;
146-147). As in the past, the unknowing Plaintiff as she did not know her termination had already
been approved attended and helped to administer the raffle by keeping a record of the winners;
Lafferty apparently concluded she was in charge of the operations of the entire raffle. (Exhibit A
12
to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of Patrick
Lafferty, p. 64; and Exhibit I to Plaintiffs Response to Defendants Motion for Summary
Disposition, Deposition of Denise Koets, pp. 144-145). As the raffle was winding down, Plaintiff
believed that it was in fact over as they had reached the usual number of prizes that had been
awarded in prior years. In fact, the Legions Director of Public Relations incorrectly announced
that the raffle was over. (Exhibit I to Plaintiffs Response to Defendants Motion for Summary
Disposition, Deposition of Denise Koets, p. 196). In addition, the two Adjutants had left the raffle
to celebrate elsewhere in the hotel with other Legionnaires. This made sense, as the biggest prizes
are drawn at the beginning of the event and all the large prizes had been claimed. After Plaintiff
left the raffle room, she shut down her cell phone and went to her hotel room to lay down due to
menstrual discomfort. (Exhibit I to Plaintiffs Response to Defendants Motion for Summary
Disposition, Deposition of Denise Koets, pp. 147-150). She was unaware the raffle was incomplete
and that a few small prizes had yet to be awarded. As noted, Runyan and Lafferty, who had both
left the raffle as well, were informed the raffle was not over. They tried to find Plaintiff to record
the winners information. They became infuriated when their calls to her cell phone went to
voicemail. In the hotel lobby, they confronted Plaintiffs husband and demanded that his wife
return to the Raffle. Scott Koets went to their room and relayed the message. In response Plaintiff
immediately returned to the hall to complete the raffle. Plaintiff was blamed for the mix-up, despite
her good faith beliefs and successful efforts to fix the snafu.
Again, the Court of Appeals, in its decision at page 3, totally accepted the Legions version
of the incident when not only were the facts in dispute, the Legions version of the incident borders
on sexism in its treatment of Denise, an ill employee, AND exploitation of using an employee that
it had already decided to fire.
13
On September 29, 2014, four days after Plaintiffs termination had been approved by
Finance but when she was still working, this law firm wrote the Defendant regarding the harsh and
apparently retaliatory treatment of Plaintiff. On September 30, a mere day later, Runyan called
Plaintiff to his office and placed Plaintiff on the Administrative Leave pending termination.
Ronald Runyan, p. 67). Contemporaneously with placing her on leave on September 30th, Plaintiff
was handed for the first time the write-ups concerning the audit and the raffle. Denise Koets never
was provided any opportunity to present the true facts and her version of these incidents as she
was summarily sent home never to return. The Legion, having already decided to terminate her,
had no interest in discovering the truth of these matters. On October 10, 2014, her termination was
finalized.
4. The Write-up on Undeposited Checks
American Legion members send in checks and payments of their dues by standard US mail
throughout the year. The mail is opened by a staffer, who scans the checks for their records, and
who then delivers the loose checks to the Plaintiff. No irregularities, nor lost or stolen checks, were
ever reported while Plaintiff was employed, or after. Plaintiff would credit the members accounts.
For some three years of her employment, the unendorsed checks were kept in Plaintiffs work area,
out of sight in her cabinet/desk. It was her practice to stamp and endorse the checks, and deposit
them weekly (Exhibit I to Plaintiffs Response to Defendants Motion for Summary Disposition,
Deposition of Denise Koets, pp. 152, 155-157).
Defendant had no policy how to handle mail or checks, much less any policies on when or
how checks were to be retained or deposited. (Exhibit G to Plaintiffs Response to Defendants
Motion for Summary Disposition, Deposition of Ronald Runyan, pp. 70-71). Checks that had not
14
been deposited were found in Plaintiffs desk after she was summarily sent home on administrative
leave. Runyan writes up Plaintiff upon the discovery of the checks, stating that her handling of
checks was total negligence and incompetence. But, he later admitted that he did not know how
Defendants checks were handled; that no money was ever lost; that the entire financial check
process was never discussed; and that there were no clear written procedures on how these checks
were to be handled or stored prior to deposit. (Exhibit G to Plaintiffs Response to Defendants
Motion for Summary Disposition, Deposition of Ronald Runyan, pp. 71 and 76).
Yet, at page 3 of the Court of Appeals decision, the appellate court buys the Legions
conclusion of total negligence and incompetence, never recognizing that over the three years she
handled the checks, under two Adjutants she NEVER violated any Legion financial policy, there
were no financial irregularities, nor did she engage in any behavior that was contrary to the
Legions financial practices. Her handling of the checks was consistent with past Legion practice,
but again, the reader of the appellate opinion does not know this3.
E. American Legion Disregard of Veterans Rights and Reports by Plaintiff
During the period after Plaintiffs husband had first submitted his disability claim to
Defendant, Plaintiff Denise repeatedly followed up on the status of his claim with her coworkers.
She found little information and cooperation on her inquiries. She discussed her concerns on the
matter, including her concern that other claims were being similarly treated, with the following
individuals, none of whom provided any response:
3
The Court of Appeals in its decision, at page 3, indicated that Plaintiff mishandled the
processing of Defendants checks, Contrary to plaintiffs job duties which required daily deposits,
these checks dated back a month. That is just wrong. Plaintiff was required to handle all entries
of daily cash. This was done through a ledger. Checks did not have to be deposited daily. (Exhibit
I to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of Denise
Koets, pp. 194-195).
15
1. Patrick Lafferty, State Adjutant General of the American Legion in September 2012
(Exhibit I to Plaintiffs Response to Defendants Motion for Summary Disposition,
Deposition of Denise Koets, pp. 47-49). Mr. Lafferty acknowledged that Plaintiff had
discussed with Plaintiff that her husbands claim was having some issues. (Exhibit
A to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition
of Patrick Lafferty, pp. 24-25);
2. James Topps, VA&R (Rehabilitation) Director in September 2012 (Exhibit I to
Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of

Denise Koets, pp. 49-51; 53-54);
3. Ray Moore, Defendants State Commander, during the same time period in the Fall,
2012 (Exhibit I to Plaintiffs Response to Defendants Motion for Summary
Disposition, Deposition of Denise Koets, pp. 51-52);
4. Mark Sutton, Public Relation Director, during the same time period (Exhibit I to
Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of
Denise Koets, pp. 52-54);
5. Lyle Shanks, Defendants Chairman of the Finance Committee, during late 2012
Deposition of Denise Koets, p. 52). Plaintiff related to him how Mr. Lafferty would
not get back with me, Mr. Topps would not get back with me. I couldnt get any
information whatsoever. (Exhibit I to Plaintiffs Response to Defendants Motion for
Summary Disposition, Deposition of Denise Koets, p. 55). No follow up re: Lafferty.
Deposition of Denise Koets, p. 56). But he referred her to a Legion Service Director.
16
Deposition of Denise Koets pp. 59-61);
6. Rebecca Kish, Phil McCaskey, Lena Peyton-Webb and Chris Simms, all American
Legion Service Directors (Exhibit I to Plaintiffs Response to Defendants Motion for
Summary Disposition, Deposition of Denise Koets, pp. 52-53). Ms. Kish confirmed
that the American Legion had lost the records. (Exhibit I to Plaintiffs Response to
Defendants Motion for Summary Disposition, Deposition of Denise Koets, pp. 66-67).
During the first part of 2013, when Plaintiff was getting nowhere but it was clear the claim
had not been filed, she told Scott [Koets] that I cant take it anymore I cant even get answers
from the adjutant, the VA&R director, this is ridiculous. (Exhibit I to Plaintiffs Response to
Defendants Motion for Summary Disposition, Deposition of Denise Koets, pp. at 62-66). Only
Plaintiff Scott Koets tenacity in getting through VA bureaucracy in Washington revealed the truth:
no claim was filed. No notice was given. Through her inquiries into her husbands claim, Plaintiff
Denise Koets learned that Defendant was losing other veterans claims, and not processing them.
(Exhibit I to Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of
Denise Koets, pp. 69-70). Plaintiff raised her knowledge with the head of the servicing department
AND with Adjutant Lafferty. (Exhibit I to Plaintiffs Response to Defendants Motion for
Summary Disposition, Deposition of Denise Koets, p. 70).
In July 2014, well after Scotts attorney letter had been received in May by Defendant,
Plaintiff raised the inadequate servicing and losses of veterans claims with the State of Michigan.
Specifically, she spoke with Christine Crocker, the Grant Administrator of the MVAA. The two
also discussed how Lafferty and Topps routinely did not provide necessary documentation for the
timely release of grant monies to Defendant. (Exhibit I to Plaintiffs Response to Defendants
17
Motion for Summary Disposition, Deposition of Denise Koets, pp. 99-105). Plaintiff also
identified Defendants improper and questionable purchases with the American Legions auditor.
She related her concerns about monies received from the Ace Hardware Company that were
directed to a non-veteran. This practice was clearly not within policy, and, as Plaintiff believed,
was a violation of the law. (Exhibit I to Plaintiffs Response to Defendants Motion for Summary
Disposition, Deposition of Denise Koets, pp. 106-107). Also, after her negative employee
performance review, Denise Koets continued to complain about the handling of veterans claims
to Gary Easterling, one of Defendants Directors, and staff member Deanna Clark. (Exhibit I to
Plaintiffs Response to Defendants Motion for Summary Disposition, Deposition of Denise
Koets, at pp. 94-95, and 98).
Plaintiff reported to Defendants auditor, Eric Sturt, and Adjutant Lafferty, that there had
been an improper purchase of a karaoke machine with state grant money. (Exhibit I to Plaintiffs
Response to Defendants Motion for Summary Disposition, Deposition of Denise Koets, pp. 107-
108). She never received any reply to these concerns that she raised.
Defendants policies as set forth in its Employee Handbook gave Plaintiff the supposed
necessary protections to report these various issues of improper practices, policy violations,
violations of law or regulations, and breaches in fiduciary duty, such as the loss and mishandling
of veterans claims and the improper use of the States grant money. (Exhibit K to Plaintiffs
Response to Defendants Motion for Summary Disposition, excerpts from Employee Handbook).
1. The American Legions policy stated with respect to whistleblowers is intended to
encourage and enable employees to raise serious concerns within The Department prior to
seeking resolution outside the Department The American Legion Department of
Michigan is committed to maintaining a workplace where employees are free to raise good
18
faith concerns regarding The Departments business practices. Plaintiff followed the
policy.
2. Plaintiff was promised no retaliation by Defendant in its handbook for reporting her issues
to its management. The Department expressly prohibits any form of retaliation, including
harassment, intimidation, or adverse employment actions, against employees who raise
suspected violations of law, cooperate in inquiries or investigations, or identify potential
violations of Department policies.
3. Finally, Defendant promised to investigate suspected violations of law or Policy and

reports of retaliation and notify the concerning individuals of their findings.
The American Legion never contested that Ms. Koets, throughout her employment, had
made these many complaints about the Legions handling of her husbands and other veterans
claims. No substantive response was given to her complaints. Yet after her husbands attorney
wrote a letter threatening litigation over the handling of Scotts disability claim, the Legion was
on notice that the Koets would seek legal redress for the Legions improper actions. This was
confirmed when Denise Koets attorneys sent the Legion a letter concerning her employment prior
to her termination. The attorney letter from Scotts attorney was the line in the sand in which the
Legion began to engage in numerous post event write-ups that documented Denise Koets
employee shortcomings.
IV. Arguments
Defendant-Appellee American Legion prevailed at the trial court on its motion disposition.
As such, the appellate review of a motion for summary disposition is de novo, Spiek v. Dept of
Transportation, 456 Mich. 331, 337; 572 N.W.2d 201 (1998). The Court of Appeals overreached
19
its authority and erroneously applied the standard for reviewing summary disposition motions,
causing material injustice to the Plaintiffs-Appellants if its decision is allowed to stand.
A. ARGUMENT ONE: PLAINTIFF-APPELLANT DENISE KOETS HAS

ALLEGED A CLAIM FOR RETALIATORY DISCHARGE UNDER THE
MICHIGAN WHISTLEBLOWERS PROTECTION ACT.
1. The Standard for Summary Disposition Under MCR 2.116(C)(10)
Defendant-Appellee filed for summary judgment on Plaintiffs-Appellants claims under
MCR 2.116(C)(10). The judicial standard for review under such a motion is well known. The court
rule 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. In determining whether there is a genuine issue
as to any material fact, we consider the evidence in the light most favorable to the nonmoving
party. Kemp v. Farm Bureau General Ins. Co. of Michigan, ___ Mich. ___; ____ N.W.2d ____
(M.Sup.Ct. June 15, 2017), slip op. pp. 4-5. (Emphasis added).
A trial court may grant a motion for summary disposition under MCR 2.116(C)(10)
when the affidavits or other documentary evidence, viewed in the light most favorable to the
nonmoving party, show that there is no genuine issue as to any material fact and the moving party
is therefore entitled to judgment as a matter of law. This Court reviews de novo the grant or denial
of a motion for summary disposition to determine if the moving party is entitled to judgment as a
matter of law. Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1, 5-6; 890 N.W.2d 344 (2016)
(citations omitted; emphasis added). This rule requires the adverse party to set forth specific facts
at the time of the motion showing a genuine issue for trial. Maiden v. Rozwood, 461 Mich. 109,
121; 597 N.W.2d 817 (1999). A reviewing court should consider the substantially admissible
evidence actually proffered by the opposing party. Id. When the proffered evidence fails to
20
establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a
matter of law. Id. at 120. Bernardino v. City of Saginaw, 499 Mich. 470; 886 N.W.2d 109, 111
(2016).
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). Pioneer State Mutual Insurance Co. v. Dells, 301 Mich. App. 368, 377;
836 N.W.2d 257 (2013). See also, West v. General Motors Corp., 469 Mich. 177, 183; 665 N.W.2d
468 (2003) and Debano-Griffin v. Lake Co., 493 Mich. 167, 175; 828 N.W.2d 634 (2013).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Maiden
v. Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). In evaluating such a motion, a court
considers the entire record in the light most favorable to the party opposing the motion, including
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties. Id. at
120.
A careful reading of the Court of Appeals decision reveals that the appeals court did not
follow these appellate rules, because the court makes clear that it assessed credibility, weighed
evidence, and decided factual disputes in favor of the American Legion and to the detriment of the
Koets. This constitutes error, as the court is charged to view the record in the light most favorable
to Plaintiffs. If the appeals court had done so, the motion would have been denied because a finder
of fact is needed to resolve material disputed facts, and as such, the case would have been
remanded for trial.
21
2. The Parameters of the WPA
Plaintiff Denise Koets has alleged and has established a Whistleblowers Protection Act
claim against Defendant. Defendant fired her after she disclosed to its management the improper
handling of veteran claims, including her husbands claim; and after she reported the misuse of the
State of Michigan grant funds to Defendants management, to its auditor, and to the head
administrator of Defendants grant with the MVAA of the State of Michigan. Under MCL Section
15.362 of the Whistleblowers Protection Act (WPA), [a]n employer shall not discharge an
employee regarding privileges of employment because 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 (Emphasis added). The underlying purpose of the act is protection of the
public. The act meets this objective by protecting the whistleblowing employee and by removing
barriers that may interdict employee efforts to report violations or suspected violations of the law.
Dolan v. Continental Airlines, 454 Mich. 373; 563 N.W.2d 23, 26 (1997). A plain reading of the
WPA reveals that employees who report violations or suspected violations of the law to a public
body are entitled to protection under the act. Id, 563 NW2d at 27.
3. The American Legion is a Public Body under the WPA
The reporting under this Act must be made to a public body. A public body under
MCL 15.361 of the Act, subsection (iv), includes [a]ny other body which is created by state or
local authority or which is primarily funded by or through state or local authority, or any member
or employee of that body. (Emphasis added). Defendant is a public body as defined by the Act.
Defendants State Adjutant testified in his deposition that 75% of the American Legions annual
funding, a majority of its funding, comes from the State of Michigan through a grant from the
22
Michigan Veterans Affairs Agency. (Exhibit A to Plaintiffs Response to Defendants Motion for
Summary Disposition, Deposition of Patrick Lafferty, pp. 19-20). At footnote 2, page 7 of the
Court of Appeals decision, the appeals court held that there is no dispute that the American Legion
is a public body for WPA purposes.
4. Plaintiff Denise Koets engaged in protected activity in Reporting

Violations of the Veteran Administration Regulations to Defendant.
It is uncontested and unchallenged that Plaintiff reported violations of the 38 CFR 14.632
regulations (these regulations are set forth in footnote 2 above) to Defendants management. She
repeatedly discussed issues on her husbands claim and claims of other veterans with Defendants
management, but to no avail. The Court of Appeals in its decision at page 7, footnote 2, stated that
there is no contest that plaintiff engaged in protected activity.
5. Plaintiff Has Met the WPA Burden of Proof
The WPA is a remedial statute that is to be liberally construed, favoring the persons the
Legislature intended to benefit. Chandler v. Dowell Schlumberger, Inc., 456 Mich. 395, 399; 572
N.W. 2d 210 (1998). Under the WPA, a plaintiff must establish three elements to make a prima
facie case under Section 2 of the WPA. Shallal v. Catholic Social Services, 455 Mich. 604], 610;
566 N.W.2d 571 (1997). The plaintiff must show that: (1) he was engaged in protected activity
as defined by the act, (2) the defendant discharged him, and (3) a causal connection exists between
the protected activity and the discharge. Id. 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.
M.C.L. Section 15.362. Chandler v. Dowell Schlumberger, Inc., , 572 N.W.2d, at 212. If Plaintiff
establishes a prima facie case, the burden then shifts to Defendant to show a legitimate reason for
the adverse employment action. Shaw v. City of Ecorse, 283 Mich. App. 1, 8; 770 N.W.2d 31
23
(2009). Once Defendant does so, the burden shifts back to Plaintiff to establish that the Defendants
proffered reason is a mere pretext for unlawful retaliation. Id. Finally, temporal proximity,
coupled with some other indication of termination on the basis of a protected activity, can satisfy
the causation element [of the WPA]. See, e.g., Henry v. City of Detroit, 234 Mich. App. 405; 594
N.W.2d 107, 112-13 (1999) (Holding that an employee who presented evidence of temporal
proximity between a protected activity and an adverse employment action, coupled with evidence
of his supervisors displeasure with the protected activity, satisfied the causation element of a
prima facie case under the WPA). Kuhn v. Washtenaw County, 709 F.3d 612 (6th Cir. 2013).
Accord: Shaw v. City of Ecorse, 283 Mich. App. 1; 770 NW2d 31 (2010) (Citing the Henry v.
City of Detroit, supra case at p. 15, the court stated that [a] temporal connection between protected
activity and an adverse employment action does not, in and of itself, establish a causal connection
but it is evidence of causation.).
Plaintiff repeatedly engaged in protected activity. While her husbands employment claim
was pending (i.e. lost), she repeatedly engaged her management on the processing of his claim.
Management acknowledged that Plaintiff inquired of her husbands claim. Her advocacy on his
claim had merit since Defendant, acting on behalf of Plaintiff through a Power of Attorney (See
Exhibit C to Plaintiffs Complaint for a copy of the authorization, in which confirmed that
Defendant was acting as Scott Koets attorney-in-fact), lost the claim with the VA and caused a
nine (9) month delay in processing his claim, with significant financial consequences. Because of
this experience, Plaintiff began to advocate with Defendants management for better processing of
her husbands claim with the State of Michigan, and those of other veterans as well. She reported
to Defendants management and its auditor the improper use of grant money from the State of
Michigan, and provided such information to the State of Michigan. Since Plaintiffs reporting to
24
Defendant constituted reporting to a public body, she was engaged in protected activity when she
so reported.
At the February 26, 2016 hearing on Defendants Motion for Summary Disposition, at page
20 of the Transcript thereof, the trial court found direct evidence of causation of a WPA
violation. The trial court stated that the minutes of the September 25, 2014 Finance/Personnel
Committee (attached as Exhibit 13, and included in the lower court records as Exhibit R to
Defendants Motion for Summary Disposition) provided direct evidence that theres a causation
element and the prongs [of the WPA claim] are met. The court found that Ms. Koets engaged in
protected activity, specifically by inquiring about her husbands VA claim informally and
formally by association in her husbands May 30, 2014, letter. The court continued at pp. 33-34;
35-36:
and what I see here is that that letter [of May 30, 2014] sends a prior stellar, exemplary
employee into a downward spiral, and I do have letters orI dont know if I would call
them letters. They are evaluations that then are July 21, 2014, and theres emails also
presented to me, June 30, 2014, and, lets see, July 19, 2014, and theres negative things
now that occur to her and, yes, they are not just temporal in time, they aretheres other
things that occur here, so while the [WPA] statute says its not just enough to be within the
same time, there are other things that are occurring to her at the same time and space.
Theres direct evidence. Its not just the temporal proximity, because we also then have
this direct evidence. This September 25, 2014, which Ive also previously referred to, this
personnel committee, it simply is direct evidence of, I think, whats going on here or it
could be deemed that way and that simply isnt for me to decide. That is for a jury to
decide.
However, the most alarming, again, that Exhibit R.
I am disheartened when I see those words where theres paragraphs of Mr. Koets and then
Mrs. Koets in the same document just paragraphs above one another, one indicating the
settlement of the plaintiff, Scott Koets, claim and then the subsequent termination of
Denise Koets. Its in the same document. (Emphasis added)
See also McNeil-Marks v. Midmichigan Medical Center-Gratiot, 316 Mich. App. 1; 891
N.W.2d 528, 538 (2016). In that case, the Michigan Court of Appeals stated that the crucial
25
inquiry concerning causation was whether the Plaintiff reported a persons violation of a PPO to
a public body before she was terminated or was about to do so at the time of termination. Herein,
it is undisputed that Plaintiff Denise Koets reported numerous violations of the VA regulations
and violations of the distribution of the State of Michigan grant money to Defendants management
and its auditor, which is a public body.4 Also, as held by the court in McNeil-Marks v.
Midmichigan Medical Center-Gratiot, supra, 891 N.W. 2d at 540, under the WPA where there is
direct evidence of retaliation that is supported through a causal connection between a claimants
discharge and the reporting of a WPA violation to a public body, a claimant/plaintiff is not required
to establish a prima facie case. Instead, the direct evidence presented by plaintiff is sufficient to
survive summary disposition despite the ostensibly legitimate reason [the employer] offers for its
actions. In this case, the trial court in its original decision found direct evidence of a violation of
the WPA when Defendant affirmed both the decision to settle Plaintiff Scott Koets civil claim for
the mishandling of his VA benefits claim and the decision to terminate Plaintiff Denise Koets
employment.
The above discussion of the four peculiar write ups on Plaintiffs alleged misconduct
established questions of fact for a finder of fact that the American Legions conduct was a pretext
for its retaliation for her having raised legitimate concerns about violations of law and regulations,
4
The Court of Appeals at p. 7, footnote 3, of its decision summarily held that a report to a
private auditor, such as the Legions auditor, is not a report to a public body under the WPA
because it is a private entity. Under MCL 15.361, an employer under the WPA includes an
agent of the employer. But the Court of Appeals in Dennis v. Wexford County Sheriffs Dept.,
Case No. 325574 (Mi. Ct. of App. June 7, 2016) (unpublished) (copy attached hereto as Exhibit 3)
defined an agent under this provision of the WPA as one who represents and acts for another
under the contract or relation of agency. Also, in Glover v. Pontiac Housing Commission, Case
No. 281737 (Mi. Ct. of App. Dec. 30, 2008) (unpublished) (copy attached hereto as Exhibit 4)
interpreted this provision of the WPA pages 6-7 to include a person who was acting with apparent
authority. As in the both the Dennis case, supra, and the Glover case, supra, these are questions of
fact for the finder of fact whether the auditor of the Legion fits within the employer definition
of agent, rather than summarily dismiss the issue as the Court of Appeals has done in this case.
26
and are in retaliation for her husbands exercise of his legal rights. See, e.g., Berry v. In Your
Golden Years, LLC, Case No. 323188 (Mich. Ct. App. Dec. 29, 2015) (unpublished) (copy
attached hereto as Exhibit 5) (At pg. 7, in denying summary disposition to an employer in a WPA
case, the court stated, Defendant presented evidence of plaintiffs violations of company policies
that could have served as the basis for her termination. But that does not rule out the possibility
that [the employer] was nevertheless motivated to fire plaintiff because she reported a violation of
law to the State.).
Defendants actions lacked the rudimentary basics of proper personnel process for
assessing discipline: (1) Plaintiff was never given notice of written policies on the subjects; (2)
Plaintiff was never allowed to tell her side of the story for each incident; (3) The write-ups for each
incident were not timely, occurring weeks after the fact; (4) Most write-ups occurred after the
decision to terminate had already been approved by the Personnel and Finance Committee; (5)
Defendant raised the raffle and check matters as reasons for Plaintiffs discharge, but its
representatives, under oath at depositions stated these incident did not enter into the organizations
rationale for terminating Plaintiff; and (6) Each incident had mitigating circumstances or an
explanation, that she had no culpability, making the punishment not fit the crime. In short, Plaintiff
has established for her WPA claim [a] genuine issue of material fact giving the benefit of
reasonable doubt to [her], leav[ing] open an issue upon which reasonable minds might differ.
West v. General Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).
Finally, Plaintiffs claim for retaliation is supported by Defendants two job performance
evaluations. Her initial review was stellar, providing Plaintiff a solid, excellent job performance,
but after the arrival of her husbands attorney letter, within a few weeks, Defendant provided a
performance review that was the direct opposite a very poor work evaluation. This second job
27
review had no objective measures or examples to illustrate its conclusions, nor any evidence of
counseling, discipline, or explanation of how this outstanding employee had suddenly become an
anathema. Defendants actions established an ominous and intimidating threat of termination,
without any proposal as to how she might avoid that fate. In order to save her job, she would have
to shut up and prevail upon her husband to withdraw his demand for money and to otherwise be
quiet about the processes she had complained about. (See, e.g., Berry v. In Your Golden Years,
LLC, supra, at page 7, the court in denying an employers Motion for Summary Disposition in a
WPA case, noted, [T]he record reveals that there was a marked difference between the
employment-related evaluations from before and after plaintiff reported defendants violations of
law to the State.). This evidence of Defendants contradictory behavior provides a genuine issue
for the trier of fact on whether Defendant violated the WPA.
The Court of Appeals, at page 6 of its decision, found no relationship for WPA purposes
between the May letter from Scott Koets attorney and the Legions September decisions to
terminate Denise Koets and to settle with Scott Koets. The appellate court appeared to ignore that
the Legions receipt of the demand letter from Scott Koets attorney, coupled with the persistent
insistence by Denise Koets for the Legions management to address its mishandling of veterans
claims, created the combustibles for more litigation. If Plaintiff Scott Koets circumstances and
settlement were public, and Plaintiff Denise Koets continued to let others know that the Legion
loses or mishandles claims, the Legions legal exposure might well have skyrocketed. Moreover,
the Court of Appeals, at page 8 of its decision, exonerated the Adjutant Runyan from any
wrongdoing: nothing in the record shows that Runyan took this information [Denise Koets
protected activity] into account when deciding to end plaintiffs employment. The appeals court
took the Legions position on each incident of discipline that Runyan was involved in, not once
28
recognizing in its review of a Motion for Summary Disposition that the Legion and Runyan s
positions were either wrong or fingered the wrong person. These actions should have been so
suspicious to the court that, applying the proper standard, they should have denied the Motion, for
it would be easy for a reasonable jury to conclude the actions were a pretext to terminate her
employment. More importantly, Plaintiffs filed their lawsuit against the American Legion, not
against Adjutant Runyan.
B. ARGUMENT TWO: PLAINTIFF-APPELLANT SCOTT KOETS HAS

PLEADED A TRIABLE CLAIM FOR LOSS OF CONSORTIUM
The Court of Appeals, at page 8 of its decision, dismissed Scott Koets claim for loss of
consortium because it dismissed Denise Koets WPA claim. Conversely, if this appeal is successful
in relation to Denise Koets WPA claim, then Scott Koets claim for loss of consortium should be
permitted to go forward.
C. ARGUMENT THREE: PLAINTIFFS-APPELLANTS WERE DENIED DUE

PROCESS OF LAW WHEN THE TRIAL COURT DID NOT PROVIDE THEM
WITH AN OPPORTUNITY TO FILE A RESPONSIVE PLEADING TO
DEFENDANT-APPELLEES MOTION FOR RECONSIDERATION
The 14th Amendment of the United States Constitution (attached hereto as Exhibit 8), and
Article I, Section 17 of the State of Michigan Constitution of 1963 (attached hereto as Exhibit 9),
provide for due process of law. As famously noted on the basics of due process of law by the U.S.
Supreme Court in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950), An
elementary and fundamental requirement of due process in any proceeding which is to be accorded
finality is notice reasonably calculated, under all circumstances, to apprise interested parties of the
pendency of the action and afford them an opportunity to present their objections. [D]ue process
is a flexible concept, the essence of which is to ensure fundamental fairness. Procedure in a
particular case is constitutionally sufficient when there is notice of the nature of the proceeding
29
and a meaningful opportunity to be heard by an impartial decision maker. Reed v. Reed, 265
Mich. App. 131, 259; 693 N.W.2d 825 (2005) (citations omitted). Plaintiffs in this matter were
denied their due process of law when they were not permitted by the trial court to file any objection
or response to Defendants Motion for Reconsideration prior to the trial court ruling on, and then
granting, the motion. Such was not an accident, but was done according to a Michigan court rule.
In the trial courts order granting Defendants Motion for Reconsideration, the court cited
MCR 2.119(F)(3) as the court rule governing a Motion for Reconsideration, and then continued,
A motion for reconsideration is decided without response briefs or oral argument. MCR
2.119(F)(2). (See May 23, 2016 Order Granting Defendants Motion for Reconsideration, p. 5).
MCR 2.119(F)(2) directs that: No response to the motion may be filed, and there is no oral
argument, unless the court otherwise directs. But this court rule, as applied in this case, created
an injustice to Plaintiffs. (MCR 2.119(F) is attached hereto as Exhibit 7)
Plaintiffs wanted to be heard in this matter. The trial court finding in their favor when
Defendants Motion for Summary Disposition was denied, was very explicit in its original finding
that Defendants actions were direct evidence of a WPA violation. Plaintiffs wanted to make sure
that the trial court knew that its original decision had merit and a sound legal foundation. But they
could not, because the trial court blindly followed the court rule to Plaintiffs detriment. Court
Rule MCR 2.119(F)(2), as applied herein, was unfair, unjust, unconstitutional, and plainly just
wrong. No one should have their personal, legal rights decided without any chance to explain their
side of the case at the time in which these rights are being decided. Only Defendant got the chance
to do so, and as a result, only hearing one side of the legal arguments, the trial court got it wrong
by deciding in Defendants favor. The trial courts original decision was correct, but the trial court
30
waivered and decided otherwise on the Motion for Reconsideration, while at the same time not
giving the most affected party a chance to tell the court why its original decision was right.
In FCC v. WJR, the Goodwill Station, Inc., 337 U.S. 265 (1949), the U.S. Supreme Court
dealt with a similar issue. In that case, the FCC permitted a second radio station to broadcast on
the same frequency as WJR, interrupting what had been until then a clear, exclusive frequency
channel. The permit was granted by the FCC to the second radio station without notice or a chance
for participation or oral hearing to WJR. WJR filed for reconsideration and a hearing, but the FCC
denied the application without any oral argument. The U.S. D.C. Court of Appeals reversed the
FCCs decision, denial of WJRs petition, and remanded the case for oral argument before the FCC
because the Fifth Amendment assured to WJR the right of oral argument. The Supreme Court
considered whether the Fifth Amendment due process clause required the FCC, an administrative
agency, to afford WJR the opportunity for oral argument upon its petition for reconsideration of
the second radio stations permit application. Although the Court reversed the appeals court
decision, the Court provided guidance on when due process required oral argument. The Court
stated, due process of law has never been a term of fixed and invariable content. This is true with
reference to oral argument as with respect to other elements of procedural due process. For this
Court has held in some situations that such argument is essential to a fair hearing, in others that
argument submitted in writing is sufficient the right of oral argument as a matter of procedural
due process varies from case to case in accordance with differing circumstances, as do other
procedural regulations. Id. at 276. [T]he particular circumstances require upon when and under
what circumstances procedural due process may require oral argument. Id. at 277. Stated
otherwise by the U.S. Supreme Court in Parratt v. Taylor, 451 U.S. 527, 540 (1981), The
fundamental requirement of due process is the opportunity to be heard and it is an opportunity
31
which must be granted at a meaningful time and in a meaningful manner. Armstrong v. Manzo,
380 U.S. 545, 552 (1965). See also Duffy v. Throwbridge, 335 So.2d 30, 32 (La. 1976) (Three
members of the Louisiana Supreme Court opined that the Louisiana State Constitution required
oral argument when a case is reargued before the Louisiana Court of Appeals). Here, only the
voice of the American Legion is heard on reconsideration, denying to Plaintiffs the opportunity to
be heard when it mattered most. This unanswered Motion resulted in the loss of their lawsuit,
effectively eliminating and sealing the Koets employment and marital rights case. Hearing only
one sides position in a lawsuit puts the adverse party at an extreme disadvantage.
The federal and state constitutions prohibit courts from following court rules that deny
persons their due process of law. Such has happened herein. The Court of Appeals, however, found
no problem with the court rule. Despite the clear language of the court rule, the appeals court stated
without any authority, at page 9 of its decision, that briefing and oral argument are permitted in
the courts discretion under the court rule, and then faulted the Plaintiffs for not taking such
actions as filing another, second Motion for Rehearing or amending their Complaint to add a claim
that had no legal merit. These outlier legal options suggested by the appeals court avoided
Plaintiffs argument that the court rule as applied herein was itself unconstitutional. Only by using
other processes does the appeals court find that due process of law was provided to Plaintiffs.
Plaintiffs-Appellants had the right to be given a meaningful opportunity to be heard at the moment
of Defendant-Appellees Motion for Reconsideration, a time when it mattered the most to them.
This denial occurred at the precise point where Plaintiffs rights were most vulnerable to assault
and in need of protection, and the lower courts erred by ignoring those rights. We know the Legion
provides fine services for many people; however, in this matter, they should not be above judgment
by a jury because of their vaulted status.
32
V. Relief Sought
For the reasons stated above, Plaintiffs-Appellants request that this grant their Application
for Leave to Appeal, and remand this case back to the trial court for trial, or whatever other or
further relief this court deems reasonable and just.
Respectfully submitted,
/s/ Karen S. Kienbaum

THE KIENBAUM LAW GROUP, P.C.
Karen S. Kienbaum (P25283)
Daniel G. Galant (P26644)

Attorney for Plaintiffs-Appellants
21 Kercheval Ave., Ste. 240
Grosse Pointe Farms, MI 48236
(313) 967-0700; fax (313) 967-0244
ksk@ksklaw.com
Dated: September 19, 2017
33
ADDENDUM I EXHIBITS
I. JUDGMENT APPEALED FROM, AND LOWER COURT ORDER
Exhibit 1 Denise M. Koets and Scott A. Koets v. The American Legion, Department
of Michigan, unpublished Opinion per curium of the Court of Appeals,
issued August 8, 2017 (Docket No. 333347).
Exhibit 2 Denise M. Koets and Scott A. Koets v. The American Legion, Department
of Michigan, Order of the Ingham County Circuit Court, issued May 23,
2016 (Docket No. 15-10-CD)
II. COPIES OF AUTHORITIES
Unpublished Cases
Dennis v. Wexford County Sheriffs Dept., Case No. 325574 (Mich. Ct. of
Exhibit 3
App. June 7, 2016) (unpublished)
Exhibit 4 Glover v. Pontiac Housing Commission, Case No. 281737 (Mich. Ct. of
App. Dec. 30, 2008) (unpublished)
Exhibit 5 Berry v. In Your Golden Years, LLC, Case No. 323188 (Mich. Ct. App.
Dec. 29, 2015) (unpublished)
Statutes
Exhibit 6 MCL 15.362, et seq., The Michigan Whistleblowers Protection Act
(WPA)
Michigan Court Rules

Exhibit 7 MCR 2.119(F)
Constitutional Provisions
Exhibit 8 U.S. Const. Amend XIV
Exhibit 9 MI Const. 1963. Art I, 17
III. KEY EXHIBITS FROM LOWER COURT RECORD
Exhibit 10 Performance Review (April 10, 2013)
Exhibit 11 Performance Review (July 21, 2014)
Exhibit 12 Write-Up on Financial Disclosure (July 22, 2014)
Exhibit 13 Minutes of Finance / Personnel Committee (September 25, 2014)
34
EXHIBIT 1
STATE OF MICHIGAN
COURT OF APPEALS
DENISE M. KOETS and SCOTT A. KOETS, UNPUBLISHED

August 8, 2017
v No. 333347
Ingham Circuit Court
THE AMERICAN LEGION, DEPARTMENT OF LC No. 15-000010-CD
MICHIGAN
Defendant-Appellee.
Before: CAVANAGH, P.J., and M. J. KELLY and SWARTZLE, JJ.
PER CURIAM.
Plaintiffs appeal as of right the summary dismissal of their claims against defendant,
including a claim of retaliatory discharge under the Whistleblower Protection Act (WPA), MCL
33315.361 et seq., arising from the termination of employment. We affirm.
Defendant is a non-profit organization that provides services to veterans, including

assisting veterans with applying for various benefits from the U.S. Department of Veterans
Affairs (VA). In January 2011, plaintiff Denise Koets (plaintiff) was hired by defendant as a
Financial Administrative Assistant and Human Resources Administrator. In that capacity, she
was to perform confidential administrative, bookkeeping, and human resources functions in
support of defendants Adjutant, Patrick Lafferty. Some of her job duties included the daily
banking, processing travel vouchers for reimbursement, performing functions for and attending
executive meetings, maintaining employee files, overseeing membership events like the yearly
raffle, and assisting in any audit coordination and administration.
In March 2012, plaintiffs husband, Scott Koets, applied for disability benefits from the
VA with defendants assistance. By September 2012, he still had received no correspondence
regarding the status of his claim. During plaintiffs efforts to determine the status of her
husbands claim, plaintiff allegedly discovered that defendants Veterans Affairs and
Rehabilitation (VA&R) division was mishandling veterans claims by losing them and causing
veterans to miss out on benefits. Plaintiff reported the mishandling of her husbands claim, as
well as the mishandling of other claims in general, to several of defendants high-level
employees, including Lafferty, the VA&R Director, the Public Relations Director, defendants
State Commander, and a chairman of defendants Finance Committee. In November 2012,
plaintiff discovered that her husbands application for benefits was never submitted to the VA
-1-
and, in December 2012, defendant finally submitted her husbands claim. By November 2013,
the VA approved his claim but, while the VA backdated his benefits to the December 2012
application date, plaintiffs husband lost nine months of disability pay benefits.
In April 2013, plaintiff received an excellent work performance review. However,

according to Lafferty, a few months after the VA approved plaintiffs husbands claim,
plaintiffs work performance began to deteriorate. In particular, plaintiff was not depositing
daily accounts correctly and chairmen were complaining to Lafferty. Plaintiff also complained
that she was overwhelmed with her job duties, but her workload had not changed. Plaintiff
became increasingly isolated from coworkers, who complained about her. For example,
Lafferty, who was slated to retire, received an email warning against correspondence going to
plaintiff concerning Laffertys job because plaintiff was the least confidential, was a sneaky
employee, and the biggest problem in this office. Lafferty testified that he spoke to plaintiff
about the issues with her job duties as they arose, but the problems persisted.
In May 2014, plaintiffs husbands attorney sent defendant a demand letter requesting
that defendant compensate him for the disability benefits he lost as a result of defendant failing
to file his original application. According to plaintiff, she was ousted from executive committee
meetings without reason as soon as defendant received the demand letter. However, a reprimand
letter in plaintiffs personnel file indicates that she was excluded from these meetings starting in
June because defendant believed plaintiff was talking openly to Legion employees concerning
the actions of the Finance Committee in executive sessions.
In June 2014, plaintiff was responsible for compiling financial packets for defendants
summer state convention. Two versions of the packets were to be created: one for defendants
Finance Committee containing confidential budgetary information, including employee salaries,
and the other containing no such information for defendants general membership. However,
plaintiff switched the packets and the general membership received the packets containing the
confidential information. As a result of plaintiffs mistake, according to Lafferty, he received
numerous emails from various employees complaining about her breach of confidentiality and
requesting her immediate termination.
Meanwhile, plaintiff continued to make complaints about defendants mishandling of

veterans claims and the misuse of defendants funding. For example, sometime after July 2014,
plaintiff apparently complained to the new VA&R director that defendant was mismanaging
veterans claims. She also told the Grant Administrator of the Michigan Veterans Affairs
Agency (MVAA) that defendant was mishandling both veterans claims and funding monies.
Apparently, around the same time, plaintiff brought the misuse of funds issue to Laffertys
attention, as well as to the attention of defendants outside auditor.
Shortly after defendants summer state convention, on July 21, 2014, defendant issued
plaintiff a negative written performance review detailing her shortcomings, including her
repeated accounting mistakes, poor time management, and unwillingness to work with
coworkers. Plaintiff also received a reprimand letter placing her on probation. The letter
referred to plaintiffs breach of confidentiality which resulted in her exclusion from the executive
sessions of the Finance Committee and plaintiffs release of confidential employee salary
information to defendants general members at the summer state convention. Defendant
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considered this breach to be a lack of judgment and a total failure of plaintiffs job
responsibilities. The letter further noted the complaints received from defendants employees,
chairmen, and members with respect to attempts to secure financial assistance from plaintiff.
On August 29, 2014, Roland Runyan replaced Lafferty as Adjutant. According to

Runyan, he almost immediately experienced problems with plaintiffs work performance. For
example, Runyan found that plaintiff could not accurately answer questions regarding budgeted
items that were part of her job duties; she was incorrectly allocating money and vouchers; and
she sent defendants financial information to the IRS for an audit in an untimely and unsecure
fashion, i.e., a CD-ROM via US mail. Subsequently, at a meeting of defendants Finance and
Personnel Committee held on September 25, 2014, Runyan recommended that the Committee
dismiss plaintiff from her employment. The meeting minutes stated:
[Plaintiff] continues to be difficult to manage. She doesnt get along well with
co-workers. Her financial abilities seem limited. She continually causes
problems with the staff. Departments finance and payroll could function okay
without [plaintiff] present. . . . Ron Runyan stated that he cant seem to get
efficient answers from [plaintiff] regarding financial issues. . . . A motion was
made . . . to release [plaintiff] from employment because of inadequate
performance of her duties. The motion passed.
The meeting minutes also noted that plaintiffs husbands claim had been settled.
Plaintiff was not immediately informed of defendants termination decision. Instead, on

September 27, 2014, she attended defendants fall state convention where a raffle was conducted
as part of the events. Per her job duties, plaintiff was to administer the raffle by pulling the prize
numbers from the raffle drum and recording the winners. Plaintiff, however, locked the raffle
drum and left before the raffle concluded, taking with her the master sheet on which she had
recorded the winners although several coworkers told her that the raffle was not finished.
Unable to complete the raffle, Lafferty and Runyan attempted to contact plaintiff via phone.
When they were unsuccessful, Lafferty and Runyan went to plaintiffs hotel to retrieve plaintiff,
who then returned and completed the raffle in accordance with state law.
Thereafter, on October 1, 2014, Runyan placed plaintiff on administrative leave and she
was given written documentation regarding the failures that had occurred during his tenure. On
October 8, while plaintiff was on leave, Runyan discovered over $70,000 in checks unsecured in
plaintiffs desk. Contrary to plaintiffs job duties which required daily deposits, these checks
dated back a month. On October 10, Runyan formally terminated plaintiffs employment.
On January 7, 2015, plaintiff and her husband filed a four-count complaint alleging (1)
retaliatory discharge in violation of the WPA; (2) retaliation in violation of public policy; (3)
termination without just cause in violation of public policy; and (4) loss of consortium. The
complaint alleged that plaintiff was disciplined and subsequently terminated from employment
because of her husbands compensation claim, and also because plaintiff had reported
defendants mishandling of veterans claims and misuse of funding.
In November 2015, defendant moved for summary disposition under MCR 2.116(C)(8)
and (C)(10). Defendant argued that the WPA claim should be dismissed because plaintiff did not
-3-
engage in protected activity and there was no evidence of any nexus between plaintiffs
termination and her alleged protected activity. Instead, defendant argued, the evidence
established that plaintiff was terminated because of a deterioration of work performance. And
because plaintiffs husbands consortium claim was derivative of the WPA claim, it must also be
dismissed. Further, defendant argued, because the WPA was plaintiffs exclusive remedy, the
public policy claims were barred and must be dismissed.
Plaintiffs responded by asserting that the evidence showed that plaintiff had repeatedly
engaged in protected activity by telling management about problems related to the processing of
veterans claims and by reporting defendants misuse of grant funds. Plaintiffs further argued
that defendants reasons for firing plaintiff were pretextual, as demonstrated by the suddenly
poor performance reviews, Runyans decision to terminate her employment based on after-
acquired evidence (the undeposited checks), and defendants failure to follow the basics of
assessing discipline. Plaintiffs also countered that the WPA was not plaintiffs exclusive remedy
thus her public policy claims should survive summary disposition, and that the evidence
supported plaintiffs husbands loss of consortium claim.
At the hearing on the motion, the circuit court sua sponte raised the issue whether
plaintiffs had a cognizable claim under the First Amendment, wherein a victim of retaliation may
bring suit for the protected activity of his or her spouse. The court, thus, framed the issue as
whether plaintiffs husbands demand letter threatening legal action was protected activity as to
plaintiff. The court reasoned: Case law has been broadened to permit the situation by
establishing a right by association with spouses and subsequent retaliation, and that is exactly the
situation I find here. In regard to causation, the circuit court found that the adverse employment
actions occurred after defendant received the demand letter and that defendant made the decision
to terminate plaintiff at the same meeting it noted that plaintiffs husbands claim was settled.
Thus, the circuit court denied summary disposition as to plaintiffs WPA claim, finding that a
genuine issue of material fact existed. And because plaintiffs husbands loss of consortium
claim was derivative of plaintiffs WPA claim, it was not dismissed. The circuit court did
dismiss plaintiffs public policy claims, holding that the WPA provided the exclusive remedy for
plaintiffs alleged injury. The court then entered an order granting in part and denying in part
defendants motion for summary disposition.
Defendant moved for reconsideration, arguing that the circuit court committed palpable
error by denying the motion based on a legal theory that was neither pleaded nor argued.
Defendant pointed out that no precedent holds that the First Amendment can be used to satisfy
the protected activity element of a WPA claim.
The circuit court took no action with regard to further briefing or oral argument on the
motion for reconsideration and plaintiff took no action in relation to the motion. Then, nearly
two months after defendant filed its motion, the circuit court entered an order granting the
motion and dismissing all of plaintiffs claims. The circuit court reasoned that, as defendant
argued, the First Amendment was inapplicable because it was neither pleaded nor raised. And
under the plain language of MCL 15.362, plaintiffs husbands demand letter could not be
attributed to plaintiff to satisfy the protected activity element under the WPA. Further, the court
held, even if plaintiff engaged in protected activity when she reported the mishandling of
veterans claims, plaintiff failed to establish that her termination was causally connected to her
-4-
protected activity. The court noted our Supreme Courts decision in West v General Motors
Corp, 469 Mich 177, 186; 665 NW2d 468 (2003), that to prove causation in a WPA claim the
plaintiff must show something more than merely a coincidence in time between protected
activity and adverse employment action. And, here, plaintiff failed to show either by direct
evidence or by inference that defendant considered plaintiffs reports regarding the mishandling
of veterans claims in its decision to terminate her employment. To the contrary, defendant
showed by substantial evidence that plaintiffs work performance was poor as early as April
2014, long before defendants September meeting at which time the decision was made to
terminate her. Thus, the circuit court concluded that it made a palpable error when it denied
defendants motion for summary disposition regarding plaintiffs WPA claim pursuant to MCR
2.116(C)(10). Accordingly, plaintiffs husbands loss of consortium claim was also dismissed.
Plaintiffs now appeal.
Plaintiffs argue that the claim of retaliatory discharge under the WPA should not have
been dismissed because a question of fact existed on the issue of causation, i.e. whether a causal
nexus existed between plaintiffs termination and her protected activity. We disagree.
This Court reviews de novo a circuit courts decision on a motion for summary
disposition. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). A motion
brought under MCR 2.116(C)(10) tests the factual support of a plaintiffs claim. Spiek v Dept
of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The moving party must identify the
matters that have no disputed factual issues, and has the initial burden of supporting its position
with documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). The party opposing the motion must then establish by evidentiary materials that a
genuine issue of disputed fact exists. Id. After considering the documentary evidence submitted
in the light most favorable to the nonmoving party, the court determines whether a genuine issue
of material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d
506 (2004).
The WPA establishes a cause of action for an employee who has suffered an adverse
employment action for reporting or being about to report a violation or suspected violation of the
law. Whitman v City of Burton, 493 Mich 303, 312; 831 NW2d 223 (2013); see also MCL
15.362. A plaintiff may establish a violation of the WPA through direct or indirect evidence.
Debano-Griffin, 493 Mich at 176. If direct evidence of retaliatory discharge exists, then the
plaintiffs burden of proof is like that of any other civil case. Hazle v Ford Motor Co, 464 Mich
456, 462; 628 NW2d 515 (2001). In the absence of direct evidence of unlawful retaliation, a
plaintiff must rely on the McDonnell Douglas1 burden-shifting framework to establish a prima
facie case of retaliatory discharge by inference from the proofs. Debano-Griffin, 493 Mich at
175-176; Hazle, 464 Mich at 462-463.
On appeal, plaintiffs initially argue that direct evidence of unlawful retaliation exists.
Specifically, plaintiffs point to the September 25, 2014 meeting minutes where the settlement for
plaintiffs husbands claim was mentioned, followed by a discussion of plaintiffs poor
1
McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).
-5-
performance and subsequent vote to terminate her employment. Direct evidence is defined as
evidence which, if believed, requires the conclusion that unlawful [retaliation] was at least a
motivating factor in the employers actions. Id. at 462 (quotation marks and citations omitted).
Here, no reasonable conclusion can be drawn from the September meeting minutes that
plaintiffs termination was the result of unlawful retaliation for plaintiffs protected activity.
First, the fact that plaintiffs husband had reached a settlement with defendant as to his benefits
claimwhich was discussed in the same meeting as plaintiffs future employment with
defendantis irrelevant to the legality of plaintiffs termination under the WPA. Under the
WPA,
[a]n employer shall not discharge . . . an employee . . . 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 . . . . [MCL 15.362
(emphasis added).]
Thus, for a WPA claim to be cognizable, the employers adverse action must be because of either
the employees protected activity or the activity of another person who is acting on behalf of that
employee. And, here, plaintiffs husbands demand letter related to defendants alleged
mishandling of his benefit claim which caused him to suffer damages and made no reference to
plaintiff or plaintiffs employment. Thus, these actions cannot be attributed to plaintiff as
protected activity and defendants discussion of this matter at the same meeting it decided to
terminate plaintiff is not direct evidence of unlawful retaliatory discharge.
Second, the September meeting minutes otherwise make no reference to any type of
protected activity that plaintiff may have engaged in; nor do the minutes reveal any type of
retaliatory animus as to plaintiff that may have motivated plaintiffs termination. Instead, the
meeting minutes reference plaintiffs deteriorating performance and show that members agreed
to her termination for that reason. And, while the executive committees notation that plaintiffs
husbands claim had been settled may create a suspicion of retaliation, this suspicious
circumstance creates nothing more than speculation as to the reason for plaintiffs termination.
See Skinner v Square D Co, 445 Mich 153, 164-167; 516 NW2d 475 (1994). The meeting
minutes, in themselves, do not create a reasonable inference of retaliation, nor do they require a
conclusion that defendants decision to terminate plaintiffs employment was motivated by
retaliation for plaintiffs protected activity. Therefore, plaintiffs claim that direct evidence of
unlawful retaliatory discharge exists to preclude summary disposition is without merit.
Absent direct evidence of unlawful retaliation, plaintiffs were required to establish a

prima facie case of retaliation under McDonnell Douglas. In cases for unlawful retaliatory
discharge under MCL 15.362 that rely on indirect evidence, a plaintiff establishes a prima facie
case by showing that (1) the plaintiff was engaged in protected activity as defined by the act, (2)
the plaintiff was discharged or discriminated against, and (3) a causal connection exists between
the protected activity and the discharge or adverse employment action. West, 469 Mich at 183-
184 (footnote omitted). In the event a plaintiff makes this showing, then the burden shifts to the
defendant to show that it had a legitimate non-retaliatory reason for the adverse employment
action. Debano-Griffin, 493 Mich at 176. If the employer makes this showing, so as to rebut the
presumption of retaliation created by the plaintiffs prima facie showing, then a plaintiffs claim
-6-
may still survive summary disposition if the plaintiff can show that the proffered legitimate
reason for the adverse employment action was a pretext for unlawful retaliatory action. Hazle,
464 Mich at 465-466.
Plaintiffs argue that a genuine issue of material fact exists as to whether defendant
violated the WPA because plaintiff made numerous reports regarding defendants mishandling of
veterans claims and misuse of funds, and because she received stellar performance reviews
before these reports and allegedly unsupported poor performance reviews after making these
reports.2 However, a review of the record indicates that no evidence exists from which a
reasonable juror could conclude that defendant terminated plaintiff because she engaged in
protected activity. To establish the requisite level of causation, it is not enough to simply show
that the employee engaged in protected activity; rather, a plaintiff must show that the adverse
action was somehow influenced by the protected activity. West, 469 Mich at 187. Moreover, a
temporal connection between the protected activity and the adverse action, while some evidence
of unlawful action, is not enough to support a conclusion that the adverse action occurred
because the plaintiff engaged in protected activity. Id. at 186-187.
Here, the record shows that plaintiff engaged in protected activity by making reports of
defendants mishandling of veteran claims starting in late 2012 to Lafferty, the VA&R Director,
defendants State Commander, the Public Relations Director, the Chairman of the Finance
Committee, and numerous Service Directors.3 Although the record is unclear as to the continued
duration of plaintiffs reports, it does demonstrate the plaintiff renewed her complaints as late as
July 2014 when she told the Grant Administrator of the MVAA and the new VA&R Director that
claims were being mishandled. Around the same time, she also informed Lafferty of suspected
fraudulent use of defendants funds. Then, in October 2014, plaintiffs employment was
terminated. Viewing the record most favorably to plaintiff, a temporal connection may exist
between her protected activity and the termination of her employment.
As noted, however, a temporal connection alone is not enough to establish causation. Id.
And, when the admissible record evidence is viewed most favorably to plaintiff, there is no other
evidence of causation showing that her termination was somehow related to the protected
activity. There is no evidence, for example, that any of the individuals to which plaintiff made
reports demonstrated a clear displeasure with the report. That plaintiff often received no
2
Plaintiffs argument in this regard relates mainly to causation and pretext. Plaintiffs discussion
of whether defendant is a public body and whether she engaged in protected activity is mostly
irrelevant, as there is no dispute that plaintiff is a public body and defendant does not appear to
contest that plaintiff engaged in protected activity.
3
Plaintiff also notes that she made reports to the MVAA and a private auditor. The latter is not
protected activity because it was not a report to a public body, but to a private entity. See
15.362. As to the former, there is no evidence that anyone at the defendant employer, let alone
Runyan, knew that plaintiff had made a report to the MVAA. Absent such knowledge, there can
be no causal connection between plaintiffs report to the MVAA and Runyans decision to
terminate her employment.
-7-
response to her complaints is not evidence from which a reasonable juror could conclude that her
termination was motivated by plaintiffs complaints of mishandled claims. Perhaps most
significantly, however, plaintiff presented no evidence that those in charge of the decision to
terminate her employment knew that plaintiff had made any of the reports. See id. at 187-188.
The record shows that Runyan decided to terminate plaintiffs employment in September 2014.
Plaintiff did not report any violations of law to Runyan and there is no evidence showing that
any of the individuals to which plaintiff had made reports were part of the decision to terminate
her employment or otherwise told Runyan of plaintiffs protected activity. Moreover, even if
Runyan had known of plaintiffs protected activity, nothing in the record shows that Runyan
took this information into account when deciding to end plaintiffs employment. Instead, the
record reflects that Runyan, in deciding to fire plaintiff, considered her unsatisfactory job
performance and her failure to rectify her shortcomings.
Notwithstanding the foregoing, plaintiff argues that evidence of a causal connection

between her discharge and protected activity is supported by the sudden change in her work
evaluations from stellar to very poor, which occurred after she reported the mishandling of
veterans claims and were not supported by reference to any objective measures or explanation.
However, even viewing the evidence most favorably to plaintiff, it is clear that plaintiff received
excellent performance reviews in 2013 after she engaged in protected activity in 2012. And
plaintiffs claim that her poor work evaluation in July 2014 had no objective measures to
support its conclusions is refuted by the evaluation itself. Further, her claim that no explanation
for her poor performance was given is also refuted by the testimonies of her supervisors, who
testified that they orally addressed issues as they arose, and also by the July 21 reprimand letter
explaining to plaintiff how she had breached her job duties. In short, no reasonable juror
reviewing plaintiffs performance evaluations could conclude that plaintiffs protected activity
was related to either the poor performance review or the ultimate termination of her employment.
In sum, no evidence was presented to support a finding that plaintiffs employment was
terminated because she engaged in protected activity; therefore, plaintiffs failed to establish a
prima facie case of unlawful termination and the circuit court did not err by granting summary
disposition for defendant on this basis. And because plaintiffs WPA claim was properly
dismissed, her husbands derivative loss of consortium claim was also properly dismissed.
Next, plaintiffs argue that, even if a claim under the WPA was not established, the claim
for retaliation in violation of public policy and for termination without just cause should not have
been dismissed. We disagree.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim and may be
granted only where the claim alleged is so clearly unenforceable as a matter of law that no
factual development could possibly justify recovery. Wade v Dept of Corrections, 439 Mich
158, 163; 483 NW2d 26 (1992).
[A]n employer is not free to discharge an employee at will when the reason for the
discharge contravenes public policy. McNeil v Charlevoix Co, 275 Mich App 686, 703-704;
741 NW2d 27 (2007). An at-will employees discharge violates public policy if any one of the
following occurs: (1) the employee is discharged in violation of an explicit legislative statement
prohibiting discharge of employees who act in accordance with a statutory right or duty; (2) the
-8-
employee is discharged for the failure or refusal to violate the law in the course of employment;
or (3) the employee is discharged for exercising a right conferred by a well-established
legislative enactment. Id. at 704.
However, [a] public policy claim is sustainable . . . only where there also is not an
applicable statutory prohibition against discharge in retaliation for the conduct at issue.
Dudewicz v Norris-Schmid, Inc, 443 Mich 68, 80; 503 NW2d 645 (1993), disapproving on other
grounds in Brown v Mayor of Detroit, 478 Mich 589, 594 n 2 (2007). Here, the WPA provides
plaintiff a cause of action for the reporting of defendants mishandling of veterans claims in
violation of the law. Consequently, the WPA is plaintiffs exclusive remedy and her public
policy claims, based on the same conduct at issue as plaintiff admits, are not sustainable.
Although the circuit court erroneously held that the WPA was no longer plaintiffs exclusive
remedy, it properly dismissed her public policy claims on the basis that they rested on the same
facts as plaintiffs WPA claim. This Court will affirm a lower courts decision even if it reached
the correct result for the wrong reason. Demski v Petlick, 309 Mich App 404, 441; 873 NW2d
596 (2015).
Finally, plaintiffs argue that they were denied due process when the trial court failed to
provide them an opportunity to respond to defendants motion for reconsideration filed under
MCR 2.119(F). We disagree.
The state and federal constitutions guarantee that no person shall be deprived of life,
liberty, or property without due process of law. US Const, Am XIV; Const 1963, art 1, 17.
Due process in civil cases generally requires notice of the nature of the proceedings, an
opportunity to be heard in a meaningful time and manner, and an impartial decisionmaker.
Cummings v Wayne Co, 210 Mich App 249, 253; 533 NW2d 13 (1995).
MCR 2.119(F), which is titled Motions for Rehearing or Reconsideration, provides:

(1) Unless another rule provides a different procedure for reconsideration of a
decision (see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or
reconsideration of the decision on a motion must be served and filed not later than
21 days after entry of an order deciding the motion.
(2) No response to the motion may be filed, and there is no oral argument, unless
the court otherwise directs.
Pursuant to MCR 2.119(F)(2), the circuit court considered defendants motion for
reconsideration without further briefing or oral argument, which did not violate plaintiffs due
process rights.
First, the court rule does not prohibit the consideration of a response to a motion for
reconsideration or oral argument; rather, briefing and oral argument are permitted in the courts
discretion under the court rule. Plaintiffs, however, did not move to file a response or make a
request for oral argument. Moreover, plaintiffs could have, but did not, move for reconsideration
of the circuit courts opinion and order on reconsideration pursuant to MCR 2.119(F)(1), thereby
availing themselves of an opportunity to respond to defendants motion and the courts new
order. Instead, plaintiffs filed this appeal. Due process only requires that a litigant be provided a
-9-
meaningful opportunity to be heard; that plaintiffs chose not to exercise this opportunity at the
circuit court level does not equate to a due process violation.
Second, plaintiffs had a full opportunity to explore the evidence and argue their case
before the circuit court at the summary disposition stage, in both briefing and during oral
argument. During the hearing, plaintiffs also had an opportunity to respond to defendants
arguments and to gain an understanding of the circuit courts rationale for initially denying the
motion. And, although the circuit court initially denied summary disposition based on a novel
legal theory neither raised in plaintiffs complaint nor argued by plaintiffsand which defendant
attacked as palpable error in the motion for reconsiderationplaintiffs did not move to amend
their complaint before entry of a final order. See MCR 2.116(I)(5). Because plaintiffs had
ample opportunities to argue their case at the summary disposition stage, the circuit court did not
deprive plaintiffs of the opportunity to be heard by acting in conformity with MCR 2.119(F)(2).
Affirmed. Defendant is entitled to costs as the prevailing party. See MCR 7.219(A).
/s/ Mark J. Cavanagh

/s/ Michael J. Kelly
/s/ Brock A. Swartzle
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EXHIBIT 2
STATE OF MICHIGAN
IN THE 30TH CIRCUIT COURT FOR THE COUNTY OF INGHAM
DENISE M. KOETS and ORDER

SCOTT A KOETS,
HON. ROSEMARIE EfAQUILINA
Plaintiffs,
Docket No: 15-1O-CDV
v.
THE AMERICAN LEGION,

DEPARTMENT OF MICHIGAN,
Defendant.
At a session of said Court held in the City of

Lansing, County of Ingham, State of Michigan,
this 23rd day of May, 2016.
PRESENT: The Honorable Rosemarie E. Aquilina

30th Judicial Circuit Court Judge
lIDs matter comes before this Honorable Court on American Legion Department of
Michigan's ("Defendant") Motion for Reconsideration regarding this Court's March 7, 2016
Order denying in part Defendant's Motion for Summary Disposition. This Court's denial
pertained to Plaintiff Denise Koets' ("Plaintiff Denise") Whistleblower Protection Act ("WPA")
claim, and Plaintiff Scott Koets' ("Plaintiff Scott") claim for loss of consortium.
BACKGROUND FACTS
Plaintiff Denise and Plaintiff Scott are husband and wife. Defendant is a Michigan non-
profit organization that provides services to active and non-active military personnel. J One of
such services includes helping veterans obtain benefits from the U.S. Department of Veterans
Affairs ("VA").
J Defendant receives grant money from the State of Michigan, and is part of the national
corporation, American Legion, which Congress chartered in 1919.
On January 12, 2011, Defendant hired Plaintiff Denise as a Financial Administrative
Assistant and Human Resource Administrator. She was an at~will employee and was primarily
responsible for bookkeeping, depositing checks, attending executive meetings, overseeing
membership events, and completing administrative tasks.
In March 2012-while Plaintiff Denise was still employed with Defendant-Plaintiff
Scott sought assistance from Defendant in applying for disability benefits from the VA.
Defendant agreed to act as Plaintiff Scott's representative for his claim, but an error ultimately
occurred, thereby delaying Plaintiff Scott's receipt of benefits. During such time, Plaintiff Denise
inquired about the status of her husband's claim to her direct supervisor and State Adjutant, Pat
Lafferty. After some time passed, Plaintiff Scott's claim was resubmitted and was resolved.
Following an employment review dated April 10, 2013, which praised Plaintiff Denise's
work performance, Plaintiff Denise's relationship with Defendant started to deteriorate,
culminating in a poor performance review and reprimand on July 21, 2014, and ultimately her
termination in October of 2014. 2 It is at this time that the parties disagree about the underlying
cause of the foregoing events. According to Plaintiff Denise, her termination was triggered by: 1)
Plaintiff Scott's May 30, 2014 letter to Defendant threatening to sue for allegedly mishandling
his benefits claim, and 2) Plaintiff Denise's mentioning to the Grant Administrator of the
Michigan Veterans Affairs Agency ("MVAA"), Christine Crocker, in July of 2014, that
Defendant was mishandling veterans' claims. 3 See, Plaintiffs' Response to Defendant's Motion
for Summary Disposition, Exhibit F. Plaintiff Denise also alleges that in the time leading up to
2 See, Plaintiffs' Response to Detendant's Motion for Summary Disposition, Exhibit D; see,
Defendant's Motion for Summary Disposition, Exhibit U; Defendant's Motion for Summary
Disposition, Exhibit L.
3 Plaintiff Denise's current counsel also sent Defendant a letter, dated September 23, 2014,
claiming workplace harassment and retaliation.
2
her termination she made complaints to Mr. Lafferty and another Department head that
Defendant was mishandling veterans' claims. Furthermore, Plaintiff Denise purportedly reported
to Mr. Lafferty and Defendant's auditor, Eric Sturt, that Defendant was making inappropriate
purchases, e.g., a karaoke machine, with grant money.
Alternatively, Defendant maintains that Plaintiff Denise's work performance started to
decline prior to Plaintiff Scott's May 30, 2014 demand letter. In support of its argument,
Defendant has provided this Court with emails and letters from various American Legion
members and employees all expressing concerns regarding Plaintiff Denise's work performance.
~
See, Defendant's Motion for Summary Disposition, Exhibits H, M, N, and O. Defendant also
alleges that Plaintiff Denise divulged and mishandled confidential information, created
budgeting issues, left: early from an organization sponsored raffle, and did not deposit checks as
her job required. 4 Defendant maintains that the latter issue is what ultimately led to Plaintiff
Denise's termination on October 10,2014. 5
On or around January 7, 2015, Plaintiffs filed this action against Defendant alleging
retaliation in violation of the WPA (Count I), retaliation in violation of public policy (Count II),
termination without just cause (Count III), and loss of consortium as to Plaintiff Scott (Count
IV). Defendant subsequently filed a motion for summary judgment on all four counts, pursuant
to MCR 2.l16(C)(8) and (C)(lO), which this Court heard on February 26, 2016. This Court
ultimately held that Plaintiff Denise's WPA claim withstood summary judgment on the basis that
4 Plaintiff Denise admits she left: the raffle early. Also, Defendant asserts that checks totaling
more than $70,000 were found in Plaintiff Denise's work area, and were not deposited. See,
Defendant's Motion for Summary Disposition, Exhibits L, P, 0, T, and U.
5 Prior to Plaintiff Denise's termination on October 10,2014, a meeting was held on September
25,2014, before the finance committee and new Adjutant, Ron Runyan, where Plaintiff Scott's
settlement of his VA claim was discussed, as well as Plaintiff Denise's possible termination. See,
Defendant's Motion for Summary Disposition, Exhibit R.
3
Plaintiff Denise was engaged in protected activity when 1) she inquired about her husband's VA
claim and 2) when Plaintiff Scott sent a demand letter on May 30, 2014, threatening legal action
against Defendant. 6 Further, this Court found a causal connection between the foregoing
protected activity and Plaintiff Denise's termination by virtue of the fact that she received a poor
perfonnance evaluation shortly after Plaintiff Scott sent the demand letter, and because both
Plaintiff Scott's settlement of his VA claim and Plaintiff Denise's possible termination was
discussed at a meeting held before Defendant's finance committee on September 25, 2014.
With regard to Counts II, III, and IV, this Court dismissed Counts II and III, finding that
Plaintiff Denise's WPA claim was her exclusive remedy, but did not dismiss Count IV because it
was derivative of Plaintiff Denise's WPA claim.
On March 7, 2016, this Court entered the Order granting in part and denying in part
Defendant's Motion for Summary Disposition, which Defendant is now asking this Court to
reconsider.
DEFENDANT'S ARGUMENT
Defendant argues that this Court made a palpable error when it considered Plaintiff
Scott's demand letter threatening to sue Defendant for allegedly mishandling his benefits claim
as protected activity attributable to Plaintiff Denise, and when it held that a causal connection
existed between Plaintiff Scott's letter and Plaintiff Denise's termination. Defendant contends
that neither Plaintiff Scott's actions nor the First Amendment right to privacy and association,
which this Court raised without ever being claimed, pled, or argued, should have been used as
6 With regard to the second reason, this court rationalized, pursuant to Thompson v North
American Stainless, LP, 562 US 170; 131 SCt 863 (2011), that the actions of a spouse could be
considered protected activity attributable to an employee. This Court also reasoned that Plaintiff
Scott's demand letter constituted a protected activity that could be extended to Plaintiff Denise
through the First Amendment.
4
justifications for denying summary disposition regarding Plaintiff Denise's WPA claim. First,
with regard to the First Amendment issue~ Defendant maintains that the First Amendment is
inapplicable to this case because I) it was never raised by either party, 2) Defendant did not and
does not consent to it being raised, and 3) Defendant is not a state actor and is therefore not
subject to constitutional claims. 7 Next, with regard to Plaintiff Scott's letter, Defendant asserts
that it was neither made on Plaintiff Denise's behalf, nor had anything to do with her
employment. 8 Further, Defendant states that there is no precedent for attributing the actions of a
non-employee to that of an employee for the purpose of satisfying the protected activity element
of a WPA claim. Thus, Defendant requests that this Court reverse its decision denying summary
disposition regarding Plaintiff Denise's WPA claim and Plaintiff Scott's loss of consortium
claim as it is derivative of the WPA claim.
STANDARD OF REVIEW
MCR 2.1 19(F)(3) governs a motion for reconsideration and states in pertinent part:
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. The
moving party 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.
A motion for reconsideration is decided without response briefs or oral argument. MCR
2.119(F)(2). The purpose of a motion for reconsideration is to allow the trial court an opportunity
to immediately correct any obvious error, which might otherwise require a costly appeal. Bers v
7 Defendant cites to City ofBronson v American States Ins Co, 215 Mich App 612, 618-19; 546
NW2d 702 (1996), to support the proposition that claims added sua sponte without all the
parties' consent must be vacated.
Defendant also asserts that the mishandling of veterans' claims is not a suspected violation or
actual violation of the law.
5
Bers, 161 Mich App 457, 462; 411 NW2d 732 (1987). Further, a motion for reconsideration is
not a mechanism whereby a party can re-argue an unsuccessful position by citing new facts or
legal theories, which were not, but could have been, raised in the initial motion. Rather, the main
focus in a motion for reconsideration is on the initial ruling of the court and the evidence and
arguments made in support thereof. See, Charbeneau v Wayne County General Hospital, 158
Mich App 730, 733; 405 NW2d 151 (1987). "The grant or denial of a motion for reconsideration
rests within the discretion of the trial court." ld.
CONCLUSIONS OF LAW
A. Plaintiff Denise's claim under the Whistleblowers' Protection Act
Under the WPA, plaintiff must prove by a preponderance of the evidence "a prima facie
case of discrimination." Hopkins v Midland, 158 Mich App 361, 378; 404 NW2d 744 (1987). If
plaintiff is successful in carrying its burden, "the burden shifts to the defendant to articulate some
legitimate, nondiscriminatory reason for the adverse action." ld If defendant is successful, the
burden then shifts back to plaintiff to show that the reason articulated by defendant is just pretext
for discrimination. ld Plaintiff can show pretext "either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence." ld. at 380. A defendant may be
"entitled to summary disposition if it offers a legitimate reason for its action and plaintiff fails to
show that a reasonable fact-finder could still conclude that plaintiff's protected activity was a
'motivating factor' for the employer's adverse action." Debano-Griffin v Lake County, 493 Mich
167,176; 828 NW2d 634 (2013).
In order for a plaintiff to establish a prima facie case under the WPA, plaintiff is required
to show that "(1) he [or she] engaged in protected activity as defined by the WPA, (2) he [or she]
6
was discharged, and (3) a causal connection existed between the protected activity and the
discharge." Shallal v Catholic Social Services of Wayne County, 455 Mich 604,610; 566 NW2d
571 (1997) (citing Terzano v Wayne Co., 216 Mich App 522, 526; 549 NW2d 606 (1996). A
plaintiff has engaged in a protected activity if he or she reported or is about to report what he or
she suspects to be a violation of the law to a public body. See, Shallal, supra at 629. MeL
15.361(d) defines a public body as all of the following:
(0 A state officer, employee, agency, department, division, bureau, board,

commission, council, authority, or other body in the executive branch of state
government.
(ii) An agency, board, commission, council, member, or employee of the legislative
branch of state government.
(iii) A county, city, township, village, intercounty, intercity, or regional governing
body, a council, school district, special district, or municipal corporation, or a
board, department, commission, council, agency, or any member or employee
thereof.
(iii) Any other body which is created by state or local authority or which is primarily
funded by or through state or local authority, or any member or employee of that
body.
(v) A law enforcement agency or any member or employee of a law enforcement
agency.
(vi) The judiciary and any member or employee of the judiciary.
Importantly, even if a plaintiff engages in a protected activity under the WPA, the Act does not
protect plaintiff from "an otherwise legitimate, or unrelated, adverse job action. West v General
Motors Corp, 469 Mich 177, 187; 665 NW2d 468 (2003).
In this case, Defendant is correct that the First Amendment is inapplicable as it was
neither raised nor pled by either party. Further, Defendant is correct that under the plain language
ofMCL 15.362, Plaintiff Scott's May 30, 2014 demand letter cannot be attributed to Plaintiff
Denise to satisfy the protected activity element under the WPA. Despite the fact that Defendant
is likely a public body as it is primarily funded by grants from the State of Michigan, and despite
the fact that Plaintiff Denise may have engaged in a protected activity when she allegedly
7
reported to her supervisor, Mr. Lafferty, and to the MVAA that Defendant was mishandling
veterans' claims,9 Defendant should have been granted summary disposition on the basis of
causation. Specifically, Plaintiff Denise has not shown this Court that her termination was
causally connected to a protected activity. While Defendant does discuss its settlement with
Plaintiff Scott prior to its determination to terminate Plaintiff Denise's employment during its
September 25, 2014 meeting, Plaintiff Scott's actions, as mentioned above, cannot be attributed
to Plaintiff Denise to satisfy the protected activity element. Furthermore, Defendant has provided
this Court with substantial evidence showing that Plaintiff Denise's work performance was poor
as early as April 2014 up until the date of her termination. 10 See, Defendant's Motion for
Summary Disposition, Exhibits H, L, M, N, 0, P, Q, T, and U. It is in this Court's opinion that
Plaintiff Denise has not shown this Court by either direct evidence or inference that Defendant
considered her complaints or alleged reports regarding improper purchases and the mishandling
of veterans' claims in its decision to terminate her employment. As the Michigan Supreme Court
held in West, in order to prove causation in a WPA claim plaintiff "must show something more
than merely a coincidence in time between protected activity and adverse employment action."
West, supra at 186. Thus, this Court made a palpable error when it denied Defendant's Motion
for Summary Disposition regarding Plaintiff Denise's WPA claim, pursuant to MCR
2.116(C)(1O).
9 It should be noted that the record is limited as to whether Plaintiff actually reported or was
about to report Defendant's mishandling of veterans' claims.
10 Notably, evidence showing Plaintiff Denise's poor work performance predated her July 21,
2014 performance review, as well as Plaintiff Scott's May 30, 2014 letter and Plaintiff Denise's
September 23, 2014 letter.
8
B. Plaintiff Denise's Public Policy and Termination Without Just Cause claims
On March 7, 2016 this Court entered an Order dismissing Count II, retaliation in violation of
public policy, and Count III, termination without just cause, of Plaintiffs' Complaint because
Plaintiff Denise's WPA was her exclusive remedy. See, Shuttleworth v Riverside Osteopathic
Hasp., 191 Mich App 25, 27; 477 NW2d 453 (1991). While Plaintiffs WPA claim no longer
provides Plaintiff an exclusive remedy, this Court sustains its dismissal of Count II and III,
pursuant to MCR 2.116(C)(8), on the basis that both claims rests on the same facts as Plaintiff
Denise's WPA claim, which is to be dismissed.
C. Plaintiff Scott claim of Loss of Consortium
The Michigan Court of Appeals in Long v Chelsea Community Hospital, 219 Mich App 578,
589; 557 NW2d 157 (1996), made clear that "[a] derivative claim for loss of consortium stands
or falls with the primary claims in the complaint." See, Moss v Pacquing, 183 Mich App 574,
583; 455 NW2d 339 (1990). In following this holding, because all other primary claims in
Plaintiffs' Complaint has been dismissed, Plaintiff Scott's loss of consortium claim must be
dismissed as well.
THEREFORE IT IS ORDERED that Defendant's Motion for Reconsideration is hereby
GRANTED.
FURTHER IT IS ORDERED that Count I, Count II, Count III, and Count IV in Plaintiffs'
Complaint are hereby DISMISSED.
9
FURTHER IT IS ORDERED that, pursuant to MeR 2.602(A)(3), this Order resolves the
last pending claim and closes the case.
IT IS SO ORDERED.
10
PROOF OF SERVICE
I hereby certify I served a copy of the above Order upon Plaintiffs' Counsel and
Defendant's Counsel by placing said Order in sealed envelopes addressed to Plaintiffs' Counsel
and Defendant's Counsel and depositing for mailing with the United States Mail at Lansing,
Michigan, on May 24, 2016.
Karen S. Kienbaum (P25283) Kevin J. Roragen (P56510)

Stacy A. Johnson (P76427) Warren H. Krueger (P74115)
THE KIENBAUM LAW GROUP, PC LOOMIS, EWERT, PARSLEY
Attorneys for Plaintiffs DAVIS & GOTTING, P.C.
400 Monroe, Suite 470 Attorneys for Defendant
Detroit, MI 48226 124 West Allegan, Suite 700
Lansing, 48933
EXHIBIT 3
STATE OF MICHIGAN
COURT OF APPEALS
KATHY DENNIS, UNPUBLISHED

June 7, 2016
Plaintiff-Appellant,
v No. 325574
Wexford Circuit Court
WEXFORD COUNTY SHERIFFS LC No. 13-024479-CD
DEPARTMENT, WEXFORD COUNTY
SHERIFF, and COUNTY OF WEXFORD
Defendants-Appellees.
Before: GLEICHER, P.J., and SAWYER and M. J. KELLY, JJ.
PER CURIAM.
In this employment dispute, plaintiff, Kathy Dennis, appeals by right the trial courts
order dismissing her claim that defendants, Wexford County Sheriffs Department (the
Department), Wexford County Sheriff, and the County of Wexford, retaliated against her in
violation of the Whistleblowers Protection Act (WPA), MCL 15.361 et seq., after she reported
that the countys animal control officers were illegally euthanizing animals and mishandling
funds. On appeal, we conclude that the trial court erred when it dismissed her claim against the
Department and Wexford County, but did not err when it dismissed her claim against the Sheriff
and did not err when it denied her motion for summary disposition. Accordingly, we affirm in
part, reverse in part, and remand for further proceedings.
I. BASIC FACTS
Dennis formerly worked at the Countys jail as a corrections officer, but began working
as a part-time attendant at the Wexford County Animal Shelter on September 10, 2012.
Although the job description encompassed only basic duties involving the animals, the
maintenance of the facility, and assisting the public, Dennis expressed an interest in becoming an
animal control officer and the shelters animal control officers, Michelle Smith and Jessica
Williams, allowed Dennis to participate in additional duties beyond those stated in the
attendants job description. Dennis testified that Smith also told her that her duties included
supervising jail trustees and other volunteers who would feed and clean the animals and their
cages, assist with animal euthanasia, answer the phone, input information into the animal
shelters computer, collect adoption fees, and manage the shelters Petfinder adoption website.
-1-
After she accompanied other animal control professionals as part of her effort to become
an animal control officer, Dennis related, she began to suspect that the shelters staff were
improperly euthanizing animals. She spoke to Smith and Williams about her concern that the
animals were not being euthanized properly and they told her that they would euthanize the
animals on their own from there on out. On December 6, 2012, she reported her suspicions
along with her belief that the shelters staff might be mishandling the shelters funds to
Undersheriff Trent Taylor. The Department initiated an investigation at around that time.
Dennis testified that she met with Lieutenant Richard Denison, who served as the day-to-
day administrative supervisor for the shelter, on December 19, 2012. She stated that Denison
restricted her duties at the shelter and specifically told her that she was only to be in the back
dealing with the pets and trustees. Dennis said he also told her that he did not want her to work
at the same time as Smith and Williams and that her hours would be cut accordingly. Dennis
work schedule remained the same, but, she explained, she was told that she had to call Smith
each week to determine what hours she would be permitted to work at the shelter. As a result of
this change, Dennis worked fewer hours.
Dennis again met with Denison on December 31, 2012, and surreptitiously recorded the
meeting. At the meeting, Denison asked Dennis to return the key to the locker that held the
shelters drugs. He and Dennis also discussed what she believed to be retaliatory conduct
directed at her. Because she was angry about the treatment she was receiving, Dennis turned in
her keys and quit.
In February 2013, Dennis sued the Department, the County, and the Sheriff, Gary
Finstrom. She alleged that the Department, the County, and the Sheriff retaliated against her by
reducing her job responsibilities to the more basic duties of caring for the shelter animals,
restricting her access to some shelter areas, no longer allowing her to enter shelter records on the
computer, and by cutting her work hours after she reported what she believed were irregularities
with the shelters method of euthanasia and possible mishandling of the shelters funds. She
alleged that the changes to her conditions of employment were made in violation of the WPA.
After the parties filed cross-motions for summary disposition, the trial court denied
Dennis motion and granted the motion by the Department, the County, and the Sheriff. It
determined that summary disposition was justified under MCR 2.116(C)(10) because there was
no genuine issue of material fact regarding the existence of an adverse employment action or any
causal connection between Dennis protected activity and any allegedly adverse employment
action. The court further concluded that Dennis claim against the Sheriff must be dismissed
under MCR 2.116(C)(10) because Dennis did not present evidence that the Sheriff was involved
in any of the decisions affecting her employment. Finally, the trial court concluded that Dennis
could not sue the Department because it was not a separate legal entity and thus did not qualify
as an employer for purposes of the WPA.
Dennis now appeals in this Court.
-2-
II. SUMMARY DISPOSITION
A. STANDARDS OF REVIEW
Dennis first argues that the trial court erred when it determined that she did not present
sufficient evidence to establish a question of fact as to whether she suffered an adverse
employment action and whether her engagement in protected activity had a causal relationship to
the purportedly adverse employment action. We review a trial courts decision on a motion for
summary disposition de novo. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
A trial court may grant summary disposition under MCR 2.116(C)(10) if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 120.
In evaluating a motion for summary disposition brought under this subsection, a trial court
considers 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. Id. A
genuine issue of material fact exists when reasonable minds could differ on an issue after
viewing the record in the light most favorable to the nonmoving party. Allison v AEW Capital
Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
B. ELEMENTS OF A WPA CLAIM
Under the WPA, it is unlawful for an employer to discharge, threaten, or otherwise

discriminate against an employee regarding the employees compensation, terms, conditions,
location, or privileges of employment because the employee . . . reports or is about to report . . . a
violation or a suspected violation of a law . . . . MCL 15.362. To establish a prima facie
violation of this statute, a plaintiff must allege and be able to prove that he or she was engaged
in a protected activity, was discharged, threatened, or otherwise discriminated against regarding
his or her compensation, terms, conditions, location, or privileges of employment, and that a
causal connection exists between the employees protected activity and the employers act of
discharging, threatening, or otherwise discriminating against the employee. Wurtz v Beecher
Metro Dist, 495 Mich 242, 251-252; 848 NW2d 121 (2014).
The standard of proof required under the WPA is analogous to that required in other
employment discrimination cases. Debano-Griffin v Lake Co, 493 Mich 167, 175-176; 828
NW2d 634 (2013). Barring direct evidence of retaliation, a plaintiff can rely on indirect
evidence to set forth a prima facie case under the WPA from which a factfinder could infer that
he or she suffered unlawful retaliation. Id. at 176. The burden then shifts to the defendant to
articulate a legitimate business reason for the adverse employment action, similar to the analysis
used in an employment discrimination case. Id. If a defendant does so, the burden returns to the
plaintiff to establish that the legitimate reason offered by the defendant was merely a pretext for
the adverse employment action. Id.
In Taylor v Modern Engineering, Inc, 252 Mich App 655, 660; 653 NW2d 625 (2002),
this Court explained:
In order for plaintiffs claim to survive the motion for summary disposition,
plaintiff must demonstrate that the evidence in the case is sufficient to permit a
reasonable trier of fact to conclude that plaintiffs protected activity was a
-3-
motivating factor in the adverse action taken by the employer. In other words, a
plaintiff must raise a triable issue that the employers proffered reason was a
pretext for retaliating against plaintiffs protected activity. 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 employers proffered
explanation is unworthy of credence. [Quotation marks and citations omitted.]
It is undisputed that Dennis was engaged in protected activity when she reported her
concerns about the euthanasia procedures and possible misuse of shelter funds on December 6,
2012. The trial court, nevertheless, determined that Dennis failed to present evidence from
which a reasonable jury could find that she suffered an adverse employment action.
The WPA prohibits an employer from, in relevant part, discharging or otherwise

discriminating against an employee regarding the employees compensation, terms, conditions,
location, or privileges of employment . . . . MCL 15.362. Because the Civil Rights Act
contains a similarly worded prohibition, see MCL 37.2202(1)(a) (prohibiting an employer from
discharging or otherwise discriminating against an individual with respect to employment,
compensation, or a term, condition, or privilege of employment on the basis of certain
characteristics), this Court has applied the body of law discussing what constitutes an adverse
employment action under the Civil Rights Act to the WPA. See Smith v City of Flint (On
Remand), ____ Mich App ___; ____ NW2d ____ (2015) (Docket No. 320437); slip op at 3-5.
Our Supreme Court has, however, expressed some concern about applying the body of law that
has developed to delineate the parameters of an adverse employment action in the civil rights
context to the WPA, see Wurtz, 495 Mich at 251 n 14, but it has not yet clarified how that body
of law is inconsistent with the statutory language. In any event, we need not determine whether
the modification of Dennis duties amounts to discrimination against an employee regarding the
employees . . . terms, conditions, location, or privileges of employment because Dennis
presented sufficient evidence to establish a question of fact as to whether the County reduced her
compensation by reducing her hours, which is plainly encompassed under the statute. MCL
15.362.
Although there was evidence that Dennis scheduled hours and rate of compensation
remained the same after she reported her suspected violations of law to Taylor, she testified that
the County reduced her work days and hours after her report. Dennis testified that Denison told
her that her hours were being cut because he felt that she could no longer work with Smith and
Williams. She explained that she was told to call Smith before proceeding to work. When asked
about specific days where she worked fewer hours, Dennis said that Smith would tell her that she
was not needed or needed for fewer hours. She conceded at her deposition that she did not have
documentation to corroborate her testimony, but reiterated that Smith orally told her that she was
not needed.
Denison denied that anyone cut Dennis hours, as did Smith. In addition, there was
documentary evidence that permitted an inference that Dennis schedule remained the same
despite her testimony to the contrary. Notwithstanding this evidence, Dennis testified that the
reduction in the number of actual hours that she worked was directly attributable to Denison
through Smith. In evaluating this evidence, neither the trial court nor this Court is at liberty to
judge the weight and credibility of the evidence in support of either position or determine facts.
-4-
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Rather, we must consider
the evidence in the light most favorable to Dennis. Maiden, 461 Mich at 120. When viewed in
that way, there is a question of fact as to whether Denison or Smith deliberately cut Dennis
hours and thereby reduced her compensation. Consequently, the trial court erred when it
determined that there was no evidence that Dennis suffered an adverse employment action within
the meaning of MCL 15.362.
Because of our resolution of this issue, we need not consider whether the other alleged
changes to Dennis duties amounted to discrimination regarding the terms, conditions, locations,
or privileges of Dennis employment (that is, whether they are adverse employment actions) and
need not decide whether she established that she was constructively discharged.1 We do,
however, disagree with the trial courts apparent belief that the changes to Dennis duties which
were not part of the job-description for an attendant at the shelter necessarily do not amount to
discrimination regarding the terms, conditions, locations, or privileges of Dennis employment.
Denison admitted in the recorded conversation that Dennis duties had been expanded to include
duties that were not part of the job-description and nothing in the statute limits an employers
liability for unlawfully discriminating against an employee regarding the employees terms,
conditions, locations, or privileges to those terms, conditions, locations, or privileges that are
identified in a written job description. Where there is a conflict in the evidence concerning the
terms, conditions, locations, or privileges of the employees employment, it is for the finder of
fact alone to resolve the conflict. See Marcott v Marquette, Houghton & Ontonagon R Co, 47
Mich 1, 7; 10 NW 53 (1881) (warning that trial courts must not usurp the role of the jury, and
stating that a trial court can only take a case from the jury where the evidence is absolutely free
from conflict).
The trial court also determined that Dennis failed to present evidence to establish a causal
link between her protected activity andin relevant partthe change to her compensation.
Summary disposition for the defendant is appropriate when a plaintiff cannot factually
demonstrate a causal link between the protected activity and the adverse employment action.
West v Gen Motors Corp, 469 Mich 177, 184; 665 NW2d 468 (2003). A mere temporal
sequence of events linking the activity and the subsequent employment action is not enough to
satisfy this element; the employee must present evidence of more than merely a coincidence
between the two events. Id. at 186. To prevail, plaintiff had to show that his employer took
adverse employment action because of plaintiffs protected activity[.] Id. at 185 (emphasis in
original).
A plaintiff may establish a causal connection through either direct

evidence or indirect and circumstantial evidence. Direct evidence is that which, if
believed, requires the conclusion that the plaintiffs protected activity was at least
a motivating factor in the employers actions. To establish causation using
1
On remand, the parties or trial court may reexamine whether the other actions amount to
discrimination regarding Dennis terms, conditions, location, or privileges of employment
under MCL 15.362, or would meet the criteria for a constructive discharge.
-5-
circumstantial evidence, the circumstantial proof must facilitate reasonable
inferences of causation, not mere speculation. Speculation or mere conjecture is
simply an explanation consistent with known facts or conditions, but not
deducible from them as a reasonable inference. In other words, the evidence
presented will be sufficient to create a triable issue of fact if the jury could
reasonably infer from the evidence that the employers actions were motivated by
retaliation. [Shaw v Ecorse, 283 Mich App 1, 14-15; 770 NW2d 31 (2009)
(citations and quotation marks omitted).]
Dennis presented evidence that, if believed, would permit a reasonable jury to find that
Denison altered her hoursor authorized Smith to alter her hoursbecause Dennis engaged in
protected activity. Dennis recorded a conversation that she had with Denison in December 2012.
The transcript of the conversation shows that Dennis believed that she was being mistreated
because she reported unlawful activities at the shelter. While Denison claimed that Dennis was
not being punished, he agreed that Dennis duties had been altered because of the investigation
and told her that the changes would last for the duration of the investigation. She presented
evidence that the changes included substantial reductions in her duties, which included computer
accounting, interactions with the public, and certain aspects of animal care. Denisons statement
that the changes were related to the investigation is an admission that the changes to her duties
directly arose from Dennis decision to engage in protected activity. Moreover, Dennis
presented evidence that the other employeesSmith and Williamsdid not suffer similar
changes as a result of the investigation and she presented evidence tending to suggest that the
changes to her schedule were made to accommodate Smith and Williams. That is, Dennis
presented evidence that she alone suffered adverse consequences as a result of the investigation
even though the investigation ostensibly encompassed a review of the other employees conduct.
Under the totality of the circumstances, a reasonable fact-finder could infer that Denison ordered
the changesincluding the reduction in Dennis hoursand compelled her alone to suffer the
adverse consequences as retaliation for her decision to report possible misconduct at the shelter.
The same evidence, however, could permit a reasonable fact-finder to conclude that the changes
were in fact temporary and made to protect Dennis and the integrity of the investigation, rather
than in retaliation. Consequently, these issues were for the fact-finder to resolve.
The Department and Wexford County did not offer a business reason for limiting Dennis
hours; instead, they denied that her hours had been reduced. As already noted, there was a
question of fact as to whether Dennis hours were reduced as a result of her decision to engage in
protected activity. And, in the absence of evidence that the reduction in Dennis hours had a
legitimate business reason, the resolution of this dispute was for the jury. See Debano-Griffin,
493 Mich at 176. The Department and Wexford County did present evidence that the other
changes were occasioned by her poor performance, but Denisons statement to Dennis that the
changes were to protect her during the investigation directly contradicted that evidence. Thus,
the evidence tending to establish a causal link between the changes in Dennis hours and duties
and her decision to report possibly unlawful activity would also allow a reasonable fact-finder to
find that the proffered reasons were merely a pretext for unlawful retaliation. Town v Mich Bell
Tel Co, 455 Mich 688, 697; 568 NW2d 64 (1997) (The proofs offered in support of the prima
facie case may be sufficient to create a triable issue of fact that the employers stated reason is a
pretext, as long as the evidence would enable a reasonable factfinder to infer that the employers
decision had a discriminatory [or retaliatory] basis.).
-6-
The trial court erred when it determined that Dennis failed to establish a question of fact
on her WPA claim. Accordingly, it erred when it dismissed her claim on that basis. However,
because there wasat the very leasta question of fact as to whether any changes to Dennis
hours or duties were causally linked to her engagement in protected activity, the trial court did
not err when it denied Dennis motion for summary disposition.
C. CLAIM AGAINST THE SHERIFF
Although we have concluded that the trial court erred when it dismissed Dennis WPA
claim on the ground that she failed to establish a prima facie case, we conclude that the trial
court did not err when it dismissed the claim against Finstrom. There was significant evidence
that Finstrom played no material role in the events at issue. Taylor testified that his duties
included acting in Finstroms stead when Finstrom was not available, and that he was
responsible for the overall supervision of the agency. He stated that in early December 2012, he
became aware of possible problems at the shelter from a sergeant at the corrections divisions.
He spoke with Finstrom about the matter and told him he thought the department should
investigate and Finstrom agreed.
Taylor stated that Dennis came to his office on December 19 and told him how she felt
she had been mistreated. He denied telling her that any decision to cut her hours had been made
by Finstrom. He did tell her that he would take it up with Finstrom, but he did not do so before
Dennis quit. Denison similarly stated he never discussed Dennis allegations with Finstrom.
Finstrom testified that he was made aware of Dennis concerns, but did not remember
when this occurred. He did not ask Denison about the allegations and never reviewed the results
of the internal investigation. Finstrom also denied ever speaking with Denison about Dennis
hours. He stated that Denison did not state that he was taking any disciplinary action against
Dennis. He recalled that he and Denison had some discussion regarding her work output, not
doing what she was supposed to be doing as far as her shelter attendant duties, and there were
some problems with visitorspersonal visitors. But he did not recall Denison saying that he
would take any particular action and was not aware that Denison had taken any steps to alter
Dennis schedule or duties.
To contradict this evidence, Dennis presented her deposition testimony in which she
stated that Taylor told her that Finstrom was aware that her hours were being cut and that her
duties were being changed and that Taylor would try to talk to him to get them back for her.
Nevertheless, she acknowledged that she never had a conversation with Finstrom about her
allegations. She also admitted that it was her understanding that Denison made the decisions
concerning the activities at the shelter, including her hours, job responsibilities, and access to the
computer. She similarly acknowledged that she had no documentation that Finstrom made any
decisions concerning her hours or her duties.
Dennis assertion that Taylor told her that Finstrom was aware of the changes is not
evidence that he was involved with the decision to change her hours or duties; Dennis conflates
awareness of with responsibility for the disputed actions. Evidence that Taylor told Dennis
that Finstrom was aware that her hours were being cut and that her duties were being changed
does not establish that he actually caused the changes. In addition, Dennis acknowledged that
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the actual shelter decisions were made by Denison, and this acknowledgement is supported by
their recorded conversation. Dennis failed to present evidence sufficient for a reasonable jury to
conclude that Finstrom was personally involved in the alleged adverse employment actions.
With respect to Dennis contention that Finstrom is nonetheless vicariously liable, the
Legislature has specifically provided that [a] sheriff shall not be responsible for the acts,
defaults, and misconduct in office of a deputy sheriff. MCL 51.70. This limits Finstroms
personal liability for Denisons actions. Cf. Lockaby v Wayne Co, 406 Mich 65, 77; 276 NW2d
1 (1979). Because the evidence, if believed, only implicates acts by Denison, the trial court did
not err when it dismissed Dennis claim against Finstrom.
D. THE DEPARTMENT
Dennis also argues on appeal that the trial court erred when it determined that the
Department was not an employer within the meaning of the WPA. Whether the Department is
an employer under the WPA is a question of law that this Court reviews de novo.
In Whitman v City of Burton, 493 Mich 303, 311-312; 831 NW2d 223 (2013), our
Supreme Court explained:
When interpreting a statute, we follow the established rules of statutory

construction, the foremost of which is to discern and give effect to the intent of
the Legislature. To do so, we begin by examining the most reliable evidence of
that intent, the language of the statute itself. If the language of a statute is clear
and unambiguous, the statute must be enforced as written and no further judicial
construction is permitted. Effect should be given to every phrase, clause, and
word in the statute and, whenever possible, no word should be treated as
surplusage or rendered nugatory. Only when an ambiguity exists in the language
of the statute is it proper for a court to go beyond the statutory text to ascertain
legislative intent. [Footnotes omitted.]
MCL 15.361 provides, in pertinent part:
As used in this act:
(a) Employee means a person who performs a service for wages or other
remuneration under a contract of hire, written or oral, express or implied.
Employee includes a person employed by the state or a political subdivision of the
state except state classified civil service.
(b) Employer means a person who has 1 or more employees. Employer

includes an agent of an employer and the state or a political subdivision of the
state.
(c) Person means an individual, sole proprietorship, partnership, corporation,

association, or any other legal entity.
-8-
The trial court agreed that the Department could not be sued under the WPA because it
did not exist as a separate legal entity, but instead exists only as an agency of Wexford County.
In Bayer v Almstadt, 29 Mich App 171; 185 NW2d 40 (1970), this Court held that the Macomb
County Sheriff and the Macomb County Sheriffs Department could not be held liable for an
alleged assault and battery of a prisoner by a deputy sheriff. This Court reasoned that the
department could not be liable because it was an agency of the county, and was not liable under
Const 1963, art 7, 6.2 Id. at 175. Bayer is not binding under MCR 7.215(J)(1), and in any
event did not involve a claim under the WPA.
In Leelanau Co Sheriff v Kiessel, 297 Mich App 285; 824 NW2d 576 (2012), this Court
discussed the veterans preference act (VPA), MCL 35.401 et seq., when deciding whether the
sheriff had unfettered discretion to discharge a deputy or whether the decision was subject to
review under the VPA, which limits MCL 51.70 by providing that the sheriff may discharge
deputies who were honorably discharged veterans only for just cause. Id. at 293-295. This
Court noted that, although the sheriff is a constitutional officer, nothing in the Constitution
prevents the Legislature from limiting the sheriffs ability to discharge deputies at will and
determined that the provisions of the VPA could limit the sheriffs powers and that the language
of the act controlled. Id. at 293. This Court then discussed whether the sheriff was a public
department under the act and cited previous authority discussing this definition. Id. at 296.
Notably the Court held that a sheriffs department can be implicated under a statutory scheme:
It cannot be disputed that a sheriff and the sheriffs employees, colloquially

known as a sheriffs department, are a distinct part of a governmental
organization [.] [Ellis v Common Council of Grand Rapids, 123 Mich 567, 569,
82 NW 244 (1900)] (citation omitted). . . . Consequently, a sheriff and the
sheriffs employeesa sheriffs departmentis a public department within
the meaning of the VPA because it is an agency of the county. Bayer v
Macomb Co Sheriff, 29 Mich App 171, 175, 185 NW2d 40 (1970). [Id.]
Even though the Department is an agency of the county, this does not itself preclude it
from being deemed an employer under the WPA. Wexford County is a political subdivision of
the state. The county is thus an employer under the WPA. MCL 15.361(b). However, an
employer for the purposes of the act also includes an agent of an employer. Id. Agent is not
defined under the act. However, Blacks Law Dictionary (6th ed), p 63, defines agent in part
as [o]ne who represents and acts for another under the contract or relation of agency. See also
St Clair Intermediate Sch Dist v Intermediate Ed Assn/Mich Ed Assn, 458 Mich 540, 557-560;
581 NW2d 707 (1998) (looking to the common-law definitions of agency and agent when
deciding whether the Michigan Educational Special Services Association was an agent of the
Michigan Education Association for purposed of the public employment relations act). Because
2
Const 1963, art 7, 6 provides in part that [a] county shall never be responsible for [the
sheriffs] acts, except that the board of supervisors may protect him against claims by prisoners
for unintentional injuries received while in his custody.
-9-
the Department is an agency or agent of the County, we conclude that the Department is an
employer under the WPA. Consequently, the trial court erred when it determined otherwise.
III. CONCLUSION
The trial court did not err when it dismissed Dennis claim against Finstrom because
there was no evidence that he participated in the events at issue or could be vicariously liable for
anothers participation. The trial court erred, however, when it determined that the Department
could not be an employer under the WPA. Finally, the trial court erred when it determined that
there was no question of fact as to whether Dennis suffered an adverse employment action and
whether there was a causal link between any adverse employment action and Dennis decision to
engage in protected activity. For that reason, the trial court erred when it granted the motion for
summary disposition by Wexford County and the Department. For the same reason, it did not err
when it denied Dennis motion for summary disposition.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher

/s/ David H. Sawyer
/s/ Michael J. Kelly
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EXHIBIT 4
STATE OF MICHIGAN
COURT OF APPEALS
BELINDA GLOVER and ANGELA L. SPEAKS, UNPUBLISHED

December 30, 2008
v No. 281737
Oakland Circuit Court
PONTIAC HOUSING COMMISSION, a public LC No. 2005-067387-NZ
body corporate, and JANICE M. TIPTON,
Defendants-Appellees.
Before: Servitto, P.J., and Owens and Kelly, JJ.
PER CURIAM.
In this case under the Whistleblowers Protection Act (WPA), MCL 15.361 et seq.,
plaintiffs Belinda Glover and Angela Speaks appeal as of right from the trial courts grant of
defendant Pontiac Housing Commissions (PHCs) motion for summary disposition under MCR
2.116(C)(10). The trial court also dismissed the WPA claim against individual defendant Tipton.
We reverse and remand for proceedings consistent with this opinion.
I. Facts
Individual defendant Janice Tipton is the board president of defendant PHC and served in
that position in February 2004 when plaintiffs were hired as Section 8 Administrator and Human
Services Administrator. These positions were created in 2003 by PHCs then Executive Director
Bernadette Ellsworth and were approved by the PHC board. Plaintiffs and Tipton were friends
before plaintiffs were hired and in the summer of 2003 Tipton called and encouraged plaintiffs to
apply for the jobs. She assisted them with the interview process by providing them with job-
related documents, arranging their interviews, and sitting on their interview panels. Tipton told
others that she was attempting to assemble a dream team of employees at PHC who were her
friends or relatives and, in fact, several of Tiptons family members and friends were employed
at PHC.
At the time plaintiffs positions were created, PHC was suffering from budget problems,
but the director hoped that plaintiffs jobs would eventually pay for themselves through grants
and generation of additional revenue. However, during the first year after their creation, the
positions never generated enough income to cover plaintiffs salaries. Shortly after plaintiffs
began their jobs, their relationships with Tipton began to deteriorate. Tipton began to act like
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their supervisor, even though in her role as a board member she was directed not to interfere with
PHCs day-to-day operations. In August 2004, Tipton became angry with Glover when Glover
failed to contact a service provider that Tipton preferred her to use. Tipton barged in to Glovers
office, closed the door and pointed her finger in Glovers face while loudly cursing at her.
Glover felt threatened and stood up and went in to the hall. As a result of this incident, Glover
reported Tipton to the Pontiac police, filed a complaint with the City of Pontiac, and contacted
the citys director of human resources. She also reported Tipton to the Detroit United States
Department of Housing and Urban Development (HUD) office (which provides funding for
PHC).
In October 2004, Speaks reported Tipton to a HUD auditor for what she believed to be
improper credit card use, cell phone use and PHC vehicle use. Tipton found out and became
angry at Speaks and called her to complain. On October 28, 2008 unsigned, typewritten letters
that included highly personal and embarrassing information about both plaintiffs began arriving
in the mailboxes of PHC employees, the local school board, and at Pontiac Central High School.
Plaintiffs linguistics expert determined that, in her expert opinion, Tipton wrote these
derogatory letters. Speaks reported Tipton to both the Pontiac police and to the city of Pontiac
for harassment and intimidation, defamation, and interfering with Speaks job. In January 2005,
Tipton told a friend that she was planning to fire plaintiffs by writing them out of the budget.
In March 2005, PHCs executive director Franklin Hatchett and budget director Steve
Hammersly recommended to the board that plaintiffs positions be eliminated in order to deal
with the budget deficit. The entire five-member board, including Tipton, voted to approve the
budget and eliminate plaintiffs jobs. Plaintiffs believe that the budgetary reason for their firings
was merely a pretext and that they were fired because they reported Tiptons conduct to
authorities. Plaintiffs filed the present suit against defendants alleging a violation of the WPA,
violation of the Family Medical Leave Act (FMLA)1, defamation and invasion of privacy.
Defendants filed a motion for summary disposition. The trial court granted defendants motion
stating that plaintiffs failed to establish a causal connection between their discharge and the
protected activity. The trial court also dismissed the WPA claim against Tipton individually.
Plaintiffs now appeal as of right.
II. Standard of Review
We review de novo a trial court's grant of summary disposition pursuant to MCR

2.116(C)(10). Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 712; 737 NW2d
179 (2007). In reviewing a motion for summary disposition brought pursuant to subrule (C)(10),
the pleadings, affidavits, depositions, admissions, and other admissible evidence must be
considered in a light most favorable to the nonmoving party. Id. Our review is limited to the
evidence that was presented below at the time the motion was decided. Pea v Ingham Co Rd
Comm, 255 MichApp 299, 310; 660 NW2d 351 (2003). Summary disposition is properly
1
This count was later voluntarily dismissed.
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granted under MCR 2.116(C)(10) when there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law. Kennedy, supra at 712.
The determination whether evidence establishes a prima facie case under the WPA is a
question of law that this Court reviews de novo. Phinney v Perlmutter, 222 Mich App 513, 553,
564 NW2d 532 (1997).
III. Summary Disposition
Plaintiffs argue that the trial court erred in granting defendants motion for summary
disposition under MCR 2.116(C)(10), where genuine issues of material fact remain. We agree.
The WPA protects an employee who reports or is about to report a violation or suspected
violation of a law or regulation to a public body. MCL 15.362. Brown v Mayor of Detroit, 478
Mich 589, 594, 734 NW2d 514, 517 (2007). MCL 15.362 provides that an employer may not
discharge, threaten, or otherwise discriminate against an employee because the employee reports
or is about to report a violation or suspected violation of a federal or state statute or regulation to
a public body. The WPA, as a remedial statute, is to be liberally construed to favor the persons
the Legislature intended to benefit: those employees engaged in protected activity as defined
by the act. Id.
To establish a prima facie case under the WPA, a plaintiff must show that: 1) he was
engaged in protected activity as defined by the act; 2) he was discharged, threatened, or
discriminated against; and 3) a causal connection existed between the protected activity and the
discharge. Shallal v Catholic Social Services, 455 Mich 604, 610; 566 NW2d 571 (1997).
Protected activity consists of: 1) reporting to a public body a violation or a suspected violation of
a law, regulation, or rule; 2) being about to report such a violation; or 3) being asked by a public
body to participate in an investigation. MCL 15.362
Here, plaintiffs have established that they engaged in a protected activityreporting

Tipton to police, city officials and HUD officials. They have also established that they lost their
jobs. The issue to be determined is whether they have presented evidence sufficient to raise a
genuine issue of material fact as to the causal connection between the loss of their jobs and their
engagement in the protected activity.
In Trepanier v National Amusements, Inc, 250 Mich App 578; 649 NW2d 754, 757
(2002) the principal issue was whether the plaintiff was involved in a protected activity that was
causally connected with his discharge from his employment. Id. at 584. The Trepanier Court
concluded, [m]oreover, in this case there is evidence of a causal connection between plaintiff's
protected activity and his termination, namely, [the supervisors] admission that plaintiff was
discharged because of circumstances surrounding [the co-workers] harassment. Id. at 587.
This case is factually distinguishable from Trepanier because the employer in Trepanier
admitted that the protected activity was a reason for the plaintiffs termination, while here there
is no such explicit admission. Nonetheless, if the jury believes plaintiffs evidence, it could infer
a causal connection between plaintiff's reports and plaintiffs discharge. Tyrna v Adamo, Inc,
159 Mich App 592, 601; 407 NW2d 47 (1987).
Here, the trial court erred in concluding that the breakdown in the relationship between
Tipton and plaintiffs was not based upon their engagement in protected activity. The evidence
-3-

suggests that although plaintiffs and Tipton did have some personal conflicts before plaintiffs
engaged in the protected activity, Tiptons ire rose to a new level when she found out that Glover
reported her to police and city human resources in August of 2004 and when Speaks reported
concerns to the HUD auditor in October 2004. Evidence suggests that Tipton retaliated by
sending out defamatory letters. Plaintiffs then engaged in a second round of protected activity in
response to these letters and severed any personal relationship with Tipton, after which they lost
their jobs.
Plaintiffs case is similar to that of the plaintiff in Henry v City of Detroit, where the
plaintiff, a decorated police officer who had never been reprimanded, was forced to retire or take
a demotion after giving deposition testimony that had upset the chief of police. Henry v City of
Detroit, 234 Mich App 405, 594 NW2d 107, 112 (1999). The court there held that, [w]hether
the deposition or plaintiff's job performance was the real reason for defendants' action against
plaintiff was a question properly left to the jury. Id. at 113. Here, Tipton admitted that
plaintiffs actions upset her. She acknowledged that at one point she sent a letter to Speaks
husband detailing her complaints about how Speaks was doing her job because she was angry
about Speaks accusations. Also, Tipton admitted that in March 2005 she was still angry at
Speaks for going to the police. Plaintiffs have introduced expert testimony that suggests that
Tipton was angry enough at plaintiffs that she retaliated by writing highly offensive and
derogatory letters that she distributed around the community.
Plaintiffs have also introduced evidence that Tipton wielded a great deal of power within
PHC. The number of her family members and friends who are employed by PHC evidences this.
Furthermore, plaintiffs have introduced evidence that Tipton influenced Hatchetts decision-
making, including the fact that Hatchetts father was her attorney, the fact that Hatchett stated
that his predecessor would not have been fired if she had just done what Tipton said, and
Tiptons admission that Hatchett had never refused to do something she had asked him to. In
addition, Tipton stated that the board never really discussed staff cuts because, thats up to the
director. This suggests that once Tipton convinced Hatchett to eliminate plaintiffs, the other
board members would not give the matter any further discussion. Therefore, the evidence of
Tiptons anger, and of her significant power and influence over Hatchett and within the PHC
suggest a causal link between the plaintiffs engagement in a protected activity and their
subsequent discharge and provides the necessary genuine issue of material fact on the issue of
causation.
Defendants argue that, even if there is a link between plaintiffs whistleblowing and their
discharge, it is insignificant in light of the articulated reasons for plaintiffs firing. The trial court
did not reach this issue. However because it is potentially dispositive, we will address it.
This Court has found that the WPA bears substantial similarities to Michigan civil rights
statutes and that actions under the WPA are analyzed using the shifting burdens framework
utilized in retaliatory discharge actions under the Elliott-Larsen Civil Rights Act (ELCRA),
MCL 37.2101 et seq. Anzaldua v Band, 216 Mich App 561, 580, 550 NW2d 544 (1996).
Thus, the plaintiff bears the initial burden of establishing a prima facie case. Hopkins v Midland,
158 Mich App 361, 378, 404 NW2d 744 (1987). If the plaintiff succeeds, the burden shifts to the
defendant to articulate a legitimate business reason for the discharge. Id. If the defendant
produces evidence establishing the existence of a legitimate reason for the discharge, the plaintiff
-4-

must have an opportunity to prove that the legitimate reason offered by the defendant was not the
true reason, but was only a pretext for the discharge. Id.
Here, defendant offered ample evidence that plaintiffs were discharged for reasons
related to the budget. However, plaintiffs argue that this was merely a pretext because they were
the only employees who lost their jobs in March 2005 and there were a variety of other ways that
defendants could have balanced their budget. Also, shortly after plaintiffs were discharged, other
employees received discretionary raises. Furthermore, many of the employees who were
retained had less seniority and were personally connected through family or friendship to Tipton.
Once the pretext question is reached, the question of mixed motive, i.e., retaliation plus a
legitimate business reason, must be considered. In Hopkins, supra at 380, the Court adopted the
test used in Civil Rights Act situations. Id. Under this test, an employee may meet the burden
of showing pretext either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer's proffered explanation
is unworthy of credence. Id. This Court reaffirmed that this is the applicable test for proving
pretext under the WPA in Roulston v Tendercare, Inc, 239 Mich App 270, 281; 608 NW2d 525
(2000). Hence, plaintiffs can prove defendants' proffered legitimate business reason for
discharging them was a pretext by offering evidence that defendants were more likely motivated
by a retaliatory reason or by showing that the proffered reason is not worthy of credence.
Consequently, if plaintiffs can present evidence sufficient for a jury to conclude that the
proffered reason was a pretext under either method, then a trial court's grant of summary
disposition in favor of defendants is inappropriate.
We conclude that summary disposition would not have been appropriate because factual
issues remain regarding whether defendants budgetary reasons were merely a pretext for
plaintiffs firings. As previously noted, plaintiffs have offered evidence that could potentially
satisfy either method of proving pretext. First, that the budgetary decisions were not credible in
context of the other employees who were given raises, the other employees who were not
discharged and other budget cuts that were not made, but could have been. Second, plaintiffs
have offered evidence that Tiptons anger at their engagement in protected activity and of the
levels to which she was willing to take her vindictiveness suggest that they were fired for
retaliatory reasons.
In conclusion, the evidence establishes that genuine issues of material fact remain as to
whether plaintiffs have established their prima facie case under the WPA. Further, the question
of whether defendants acted on the basis of a legitimate, non-retaliatory reason in discharging
plaintiffs is a disputed question of fact that would also preclude summary judgment.
IV. Tiptons Individual Liability Under WPA
Next, plaintiffs argue that the trial court erred in finding that Tipton was not plaintiffs
employer and in concluding that she could not be liable. We agree.
The WPA contains its own definitions of employer and employee. Employer is
defined as a person who has 1 or more employees. Employer includes an agent of an
employer.... MCL 15.361(b). Employee is defined as a person who performs a service for
wages or other remuneration under a contract for hire, written or oral, express or implied.
-5-

In Elezovic v Ford Motor Co, 472 Mich 408; 697 NW2d 851 (2005), our Supreme Court
interpreted the definition of employer and also examined individual liability under ELCRA.
This interpretation and analysis can be applied to the present case because this Court has
previously determined that whistleblower statutes are analogous to antiretaliation provisions of
other employment discrimination statutes and the policies underlying these similar statutes
warrant parallel treatment. Roulston, supra at 280 (the WPA bears substantial similarities to
Michigan's civil rights statutes). Heckmann v Detroit Chief of Police, 267 Mich App 480; 705
NW2d 689 (2005) overruled in part on other grounds in Brown, supra.
Our Supreme Court held in Elezovic, that because employers can be held liable under
the [ELCRA], and because agents are considered employers, agents can be held liable, as
individuals, under the [ELCRA]. After remand, in Elezovic v Bennett, 274 Mich App 1, 10, 731
NW2d 452 (2007) this Court held that one becomes an agent for purposes of the ELCRA,
through delegation of general supervisory power and authority. Specifically, persons to whom
an employing entity delegates supervisory power and authority to act on its behalf are agents, as
distinguished from coemployees, subordinates, or coworkers who do not have supervisory
powers or authority, for purposes of the [ELCRA]. Id.
Here plaintiffs have provided evidence from which a factfinder could conclude that
Tipton, in her role as PHC board president, was acting as an agent of PHC. A review of the
number of staff members who are Tiptons friends or family members indicates that she has a
great deal of influence over the hiring process both within PHC and over contracts with outside
entities that perform work for PHC. Furthermore, she was personally present at the interviews of
both plaintiffs. In addition, plaintiffs provided several examples of occasions where Tipton
engaged in behavior of a supervisory nature. This behavior included: Tiptons attempt to ban
plaintiffs from attending PHC board meetings; Tiptons removal of Speaks from a business
meeting and requirement that she immediately assist a program participant; Tiptons telephone
call to Speaks and warning not to give direction to employees outside her division; and repeated
phone calls to Glover to inquire about one of Glovers subordinates of whom Tipton did not
approve .
Although defendants argue that Tipton and plaintiffs are coemployees and that Tipton
had no control over day-to-day operations at PHC, we find that while this may be how the PHC
is supposed to operate, evidence sufficient to survive a motion for summary disposition indicates
that, in reality, Tipton had wide-ranging authority over day-to-day operations including hiring,
general supervision and possibly firing of employees. Tipton may have been specifically
directed not to engage in such activities by HUD, yet plaintiffs presented evidence that she did
play the role of supervisor at PHC without repercussion.
In addition, even if Tipton were engaging in behavior that was technically outside the
scope of her job as PHC board president, we find that plaintiffs have also presented sufficient
evidence to establish a question of fact as to whether Tipton was acting with apparent authority.
Apparent authority is [a]uthority that a third party reasonably believes an agent has, based on
the third party's dealings with the principal, even though the principal did not confer or intend to
confer the authority. Apparent authority arises when acts and appearances lead a third person
reasonably to believe than an agency relationship exists. Meretta v Peach, 195 Mich App 695,
698-699; 491 NW2d 278 (1992). Apparent authority must be traceable to the principal and
cannot be established by the acts and conduct of the agent. Id. at 699. A court must examine the
-6-

surrounding facts and circumstances to determine if an agent possesses apparent authority to
perform a particular act. Id. Defendants argue that any apparent authority in this case cannot be
traced back to the board. However, if one examines the evidence of nepotism at PHC and of
Tiptons day-to-day role, there is a question of fact as to whether the board gave tacit approval of
Tiptons authority.
In short, the trial court erred in finding that Tipton was not personally liable under the
WPA where issues remain for the factfinder about her role as an agent or apparent agent of PHC.
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Deborah A. Servitto

/s/ Donald S. Owens
/s/ Kirsten Frank Kelly
-7-

EXHIBIT 5
STATE OF MICHIGAN
COURT OF APPEALS
JEAN BERRY, UNPUBLISHED

December 29, 2015
Plaintiff-Appellant,
v No. 323188
Bay Circuit Court
IN YOUR GOLDEN YEARS, LLC, LC No. 13-003399-NZ
Defendant-Appellee.
Before: SHAPIRO, P.J., and OCONNELL and WILDER, JJ.
PER CURIAM.
In this whistleblower action, plaintiff appeals by leave granted1 the trial courts order
granting summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in
favor of defendant. We conclude that the trial court failed to consider plaintiffs direct evidence
of a retaliatory motive in her termination of employment, and that a genuine issue of material
fact exists regarding whether plaintiff was fired because she engaged in protected activity under
the Whistleblower Protection Act (WPA), MCL 15.361 et seq. Thus, we reverse and remand this
case for further proceedings.
I. PROCEDURAL AND FACTUAL SUMMARY
Defendant hired plaintiff to work as a home health aide in June 2012. Plaintiff reported
directly to Judith Girardin, defendants owner. Plaintiff alleged that she originally worked about
36 hours per week, caring for the same client (an Alzheimers patient) six days a week. In early
fall of 2012, the clients husband died, requiring plaintiffs hours to increase to 48 hours per
week, according to plaintiff. Girardin testified that plaintiff worked 48 hours per week for a
period of time because the client had Alzheimers, and it would confuse the client to exchange
aides. Girardin also stated that plaintiff had begged and cried to be given extra work hours.
In March 2013, plaintiff requested that defendant pay her overtime for the hours worked
in excess of 40 per week. Girardin initially refused to pay plaintiff overtime because it was
1
Berry v In Your Colden Years LLC, unpublished order of the Court of Appeals, entered
December 22, 2014 (Docket No. 323188).
-1-
against company policy. Plaintiff then filed a complaint with the Wage and Hour Division of the
Department of Licensing and Regulatory Affairs. On April 10, 2013, the State sent Girardin a
letter notifying her of plaintiffs complaint alleging a violation of Michigans Minimum Wage
Law and requesting $447.75 for payment of her overtime hours. Upon receiving the notification,
plaintiff was paid for her overtime hours.
Plaintiff alleges that on April 15, 2013, Girardin called her while she was working at a
clients home and stated, you will never work overtime again, and I really hope that you dont
need anything because paybacks are Hell. Girardin testified that she may have called plaintiff,
but she did not remember making those statements. Plaintiff also alleges that the following
Wednesday, when she attempted to pick up her paycheck as she had routinely done, Girardin
told her that she could no longer continue this practice. Instead, plaintiff was instructed to pick
her check up from the mailbox on the back of defendants building after 5:00 p.m. on Thursdays,
the scheduled payday. Plaintiff claims that Girardin knew that it was a major benefit for her to
pick up her checks early because plaintiff was short on money. Girardin did not recall telling
plaintiff that she could no longer pick her checks up on Wednesdays.
Plaintiff claims that a work schedule for May 2013 was attached to her April 25, 2013
paycheck, and that for the first time her hours had been cut from 41 to 27 hours per week.
Girardin explained that she had not known that she was breaking the law in allowing plaintiff to
work overtime and not paying her an overtime rate, and thus, she hired Rebecca Bills to
supplement the hours necessary for the Alzheimers clients care. Bills averred that Girardin told
her that she was hired because plaintiff was trying to get [Girardin] in trouble with the State and
that Ms. Girardin planned on terminating plaintiff. Plaintiff claimed that Girardin knew that
plaintiff depended on her income and needed additional hours, and even after Bills was
terminated on May 29, 2013, plaintiff was not offered her hours. The clients daughter, Joanie
Herber, submitted an affidavit in which she explained that although Girardin had originally
spoke very highly of plaintiff, Herber noticed that there was a change in Girardins attitude
toward plaintiff in the summer or spring of 2013. Herber explained that Ms. Girardin went
from really liking Ms. Berry, to really saying that she wanted to get rid of Ms. Berry. Herber
also explained that she was contacted by Girardin to sign an affidavit stating that she had
requested plaintiffs termination. She said she refused to do so because it was not true.
Plaintiff claimed that she continued to have difficulty getting her paychecks and was
treated in a disparate, hostile and more adverse manner than other employees. By the summer
of 2013, her hours were fluctuating, and she was written up for conduct that was not against
company policy or was frequently done by other employees without penalty, as well as for things
she had not done. Before plaintiff filed this lawsuit and the complaint with the State, plaintiff
was written up for being late once and for being unable to travel to work on another day.
Moreover, Girardins December 18, 2012 evaluation of plaintiff had rated her excellent on
Attendance/Punctuality, as well as Initiative, Communication/Listening Skills, and
Dependability, and good on Job Knowledge. The statement, Great job Jean, is handwritten
on the evaluation, and plaintiff was informed she would be getting a raise.
Plaintiffs original complaint was filed on June 26, 2013, before she was terminated.
Plaintiff alleged a violation of the WPA, claiming that Girardin reduced her hours and was
unfairly treating plaintiff because she filed a complaint with the State regarding Girardins
-2-
refusal to pay overtime. Subsequently, the trial court allowed plaintiff to amend her complaint
because the situation had evolved, i.e., plaintiff was terminated on February 14, 2014. On March
10, 2014, defendant filed a motion for summary disposition, arguing that plaintiff failed to
establish that an adverse employment action occurred.
The trial court concluded that plaintiff established a prima facie case of impermissible
retaliation under the WPA. However, the court granted summary disposition in favor of
defendant because it found sufficient defendants proffered legitimate reasons for terminating
plaintiffs employment. The court concluded that plaintiff offered nothing but speculation to
establish that the reasons for her termination were a pretext for retaliation.
II. ANALYSIS
At issue is whether the trial court erred in granting summary disposition in favor of
defendant under MCR 2.116(C)(10). A trial courts ruling on a motion for summary disposition
is reviewed de novo. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). A
motion for summary disposition brought pursuant to MCR 2.116(C)(10) tests the factual support
for a claim. Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 474-475; 776
NW2d 398 (2009). The moving party has the initial burden of supporting its position with
affidavits, depositions, admissions, or other admissible documentary evidence[.] Id. at 475.
The burden then shifts to the nonmoving party to go beyond the pleadings to set forth specific
facts showing that a genuine issue of material fact exists. Id. (citation and internal quotation
marks omitted). 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. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
Plaintiff asserts a claim under 2 of the WPA, which states as follows:
An employer shall not discharge, threaten, or otherwise discriminate

against an employee regarding the employees 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.
[MCL 15.362.]
Pursuant to MCL 15.362, a plaintiff must establish the following to prove his or her prima facie
case: (1) he or she was engaged in protected activity as defined by the act, (2) he or she
suffered an adverse employment action,[2] and (3) a causal connection exists between the
2
Our Supreme Court recently clarified that the WPA does not expressly include the term
adverse employment action, and thus, a plaintiffs demonstration of some abstract adverse
-3-
protected activity and the adverse employment action. Whitman v City of Burton, 493 Mich
303, 313; 831 NW2d 223 (2013). The parties do not dispute that plaintiff engaged in protected
activity when she reported Girardins failure to pay overtime. However, there is a dispute
regarding what actions in this case constitute adverse employment actions and whether there is a
genuine issue of material fact regarding causation.
Plaintiff argues that the trial court erroneously limited its consideration of Girardins
alleged adverse employment actions to plaintiffs eventual termination. Plaintiff asserts that
before she was terminated, Girardin reduced her hours and employed Bills to replace her. In
Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 364; 597 NW2d 250 (1999), this
Court defined an adverse employment action as a decision that is materially adverse in that it is
more than mere inconvenience or an alteration of job responsibilities[;] there must be some
objective basis for demonstrating that the change is adverse because a plaintiffs subjective
impressions as to the desirability of one position over another are not controlling. (Citations,
internal quotation marks, and alteration omitted.) See also Pea v Ingham Co Rd Comm, 255
Mich App 299, 312; 660 NW2d 351 (2003) (stating that work places are not idyllic retreats,
and there is no exhaustive list of adverse employment actions, but they take the form of an
ultimate employment decision) (citations omitted).
Plaintiff readily admitted in her deposition that defendants policy capping employees
hours at 40 hours per week is reasonable because defendant does not receive reimbursement for
paid overtime. Further, plaintiff admitted that Girardin justifiably hired Bills to supplement the
hours of care that plaintiffs client needed, which necessarily meant that Bills and plaintiff would
have to equitably split the hours in some manner. That meant that plaintiff would not be working
40 hours per week. Moreover, defendants employee handbook expressly states that employees
are not guaranteed full-time hours. Accordingly, the reduction of her hours was not a materially
adverse employment decision, given the particular nature of plaintiffs line of work. See Pea,
255 Mich App at 312 (indicating that the determination of adverse employment decisions may
hinge on the aspects of employment unique to a particular situation).
Plaintiff further argues that, before she was terminated, she was forced to wait an extra
day to pick up her paycheck. To the extent that plaintiff asserts that this action is an adverse
employment action for the purposes of the WPA, it amounts to an inconvenience, not a material
adverse employment change or an ultimate employment decision. See Wilcoxon, 235 Mich App
at 364. That is not to diminish the fact that plaintiff may have very well needed her check on the
particular Wednesday following Girardins notice of plaintiffs report to the State. However, for
the purposes of establishing an actionable employment decision under the WPA, the adversity
must be objectively material. Id.3
employment action as that term has developed in other lines of caselaw will not be sufficient.
Wurtz v Beecher Metro Dist, 495 Mich 242, 251 n 14; 848 NW2d 121 (2014). Nevertheless, the
term may be used as helpful shorthand for ways that an employer may discriminate under the
WPA. Id.
3
To the extent that plaintiff argues that she was treated differently than other employees with
respect to when she could pick up her check and Girardins selective enforcement of cell phone
-4-
Plaintiff next argues that because her WPA claim involved evidence of direct
discrimination, the trial court erred in only analyzing this case pursuant to the burdening shifting
framework established in McDonnell Douglas v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d
668 (1972). Under the McDonnell Douglas test, 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. Debano-Griffin, 493 Mich at 176 (citations, internal quotation marks,
alteration, and emphasis omitted). Where a presumption of retaliation arises, the employer may
nevertheless be entitled to summary disposition if it presents a legitimate reason for its
employment decision. Id. It would then be the plaintiffs burden to show that a reasonable
fact-finder could still conclude that the plaintiffs protected activity was a motivating factor for
the employers adverse action. Id. (citation omitted). A plaintiff can establish pretext by
showing that the defendants reasons have no basis in fact, the reasons did not actually motivate
the defendant, or if they did, the reasons were insufficient to justify the employment action. Id.
at 180. In that regard, a plaintiff cannot simply show that the employers decision was wrong
or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or competent. Id., quoting
Hazle v Ford Motor Co, 464 Mich 456, 476; 628 NW2d 515 (2001).
However, [i]t is well settled that if a plaintiff presents direct evidence of discrimination,
she need not proceed under the McDonnell Douglas formula. Christopher v Stouder Mem
Hosp, 936 F2d 870, 879 (CA 6, 1991).4 Direct evidence is evidence which, if believed,
requires the conclusion that unlawful discrimination was at least a motivating factor in the
employers actions. Hazle, 464 Mich at 462, quoting Jacklyn v Schering-Plough Healthcare
Prod Sales Corp, 176 F3d 921, 926 (CA 6, 1999). Direct evidence has been defined as
excluding stray remarks in the workplace, statements by nondecisionmakers, or statements
by decisionmakers unrelated to the decisional process itself. Price Waterhouse v Hopkins, 490
US 228, 277; 109 S Ct 1775; 104 L Ed 2d 268 (1989). However, direct evidence may include
employer remarks that reflect a discriminatory attitude, . . . or that demonstrate a discriminatory
animus in the decisional process. Kneibert v Thomson Newspapers, Mich, Inc, 129 F3d 444,
452 (CA 8, 1997) (citation and internal quotation marks omitted).
Factors to consider in assessing whether statements are stray remarks

include: (1) whether they were made by a decision maker or an agent within the
scope of his employment, (2) whether they were related to the decision-making
process, (3) whether they were vague and ambiguous or clearly reflective of
polices and rules regarding talking about personal matters with clients, any alleged disparate
treatment is properly considered in determining whether a sufficient causal link exists between
the established protected activity and adverse employment decision, which includes the
consideration of the employers intent as evidenced by any disparate treatment. See Sniecinski v
Blue Cross & Blue Shield of Mich, 469 Mich 124, 140; 666 NW2d 186 (2003); Meagher v
Wayne State Univ, 222 Mich App 700, 709; 565 NW2d 401 (1998).
4
For the purposes of analyzing WPA claims, reliance on caselaw involving claims based on
other antiretaliatory statutes is proper. Debano-Griffin, 493 Mich at 175-176. Further, while not
binding, Michigan courts have often turned to federal caselaw for guidance relating to such
claims. See, e.g., Meagher, 222 Mich App at 710.
-5-
discriminatory bias, (4) whether they were isolated or part of a pattern of biased
comments, and (5) whether they were made close in time to the adverse
employment decision. Cooley v Carmike Cinemas, Inc, 25 F3d 1325, 1330 (CA
6, 1994); Krohn v Sedgwick James, Inc, 244 Mich App 289, 292; 624 NW2d 212
(2001). [Sniecinski v Blue Cross & Blue Shield of Mich, 469 Mich 124, 136 n 8;
666 NW2d 186 (2003).]
In this case, plaintiff argues that her affidavit, coupled with those of Bills and Herber, are
direct evidence of Girardins retaliatory motive. However, Herbers affidavit does not provide
direct evidence that Girardin made employment decisions adversely affecting plaintiff based on
the fact that plaintiff reported Girardins failure to pay overtime rates to the State in March 2013.
Herbers affidavit asserts that Girardins opinion of plaintiff changed in the summer or spring of
2013, and she went from really liking plaintiff to wanting to get rid of her. However,
assuming that statement to be true, an inference based on the timing of Girardins alleged change
in attitude is required to show that Girardin wanted to fire plaintiff because of the protected
activity plaintiff engaged in during March and April 2013. Thus, this statement is not direct, but
rather, circumstantial evidence of Girardins improper motives. See Shaw v City of Ecorse, 283
Mich App 1, 15; 770 NW2d 31 (2010) (stating that [a] temporal connection between protected
activity and an adverse employment action does not, in and of itself, establish a causal
connection, . . . but it is evidence of causation).
Nonetheless, plaintiff and Bills aver that Girardin made statements that expressly link
plaintiffs protected activity to Girardins intent to terminate plaintiff. Plaintiff claims that
Girardin called her immediately after she received notice that plaintiff had filed a complaint with
the State regarding her overtime pay, threatening that paybacks are Hell. Plaintiffs affidavit
obviously serves her interests in this case, but that does not mean that it disingenuous or
deceitful. Moreover, Billss affidavit corroborates plaintiffs allegations. Bills, who was hired
directly following plaintiffs complaint filed with the State, stated that Girardin told her that she
would have to work more hours because Jean Berry was trying to get her into trouble with the
State and that Ms. Girardin planned on terminating Jean Berry. Girardin was the primary
decision-maker for defendant, and this statement clearly reflects a retaliatory attitude. Indeed, it
evidences concrete actions being taken by Girardin to payback plaintiff for reporting the
overtime matter to the State. Thus, Billss affidavit is direct evidence of Girardins motive to
retaliate against plaintiff because she engaged in protected activity.
Admittedly, however, Girardin did not actually terminate plaintiff until February 2014,
almost a year after plaintiff filed her complaint relating to overtime with the State. Defendant
asserts that this interval shows that the protected activity was an isolated remark, not direct
evidence of discrimination. However, in this case, that Girardin may have formed an improper
motive almost a year before acting on that motive does not necessarily lead to the conclusion that
Billss assertions are not direct evidence, especially in light of the fact that Billss assertions are
consistent with the retaliatory comments that plaintiff alleges. Where the plaintiff meets his or
her burden in providing direct proof of causation, the case ordinarily must be submitted to the
factfinder for a determination whether the plaintiffs claims are true. Harrison v Olde Fin
Corp, 225 Mich App 601, 613; 572 NW2d 679 (1997).
-6-
The fact that Girardin did not terminate plaintiff until February 2014 and defendant
presented proofs in the trial court that plaintiff violated several company policies in December
2013 and February 2014 means that this may be a mixed-motive case, i.e., where the adverse
employment decision could have been based on both legitimate and legally impermissible
reasons . . . . Sniecinski, 469 Mich at 133. In such a case, this Court has held that the plaintiff
always bears the burden of persuading the trier of fact that the employer acted with illegal
discriminatory animus and establishing direct proof that the discriminatory animus was
causally related to the decisionmakers action. Harrison, 225 Mich App at 612-613. See also
Sniecinski, 469 Mich at 134-135 (stating that regardless of whether a plaintiff relies on direct or
circumstantial evidence, a plaintiff must establish a causal link between the discriminatory
animus and the adverse employment decision).
Our Supreme Court has explained that in a mixed-motive case, a plaintiff must prove
that the defendants discriminatory animus was more likely than not a substantial or
motivating factor in the decision. Id. at 133. See also Veenstra v Washtenaw Country Club,
466 Mich 155, 164; 645 NW2d 643 (2002) (Evidence of mixed motives . . . is sufficient to
withstand summary disposition. In such a case, the impermissible factor must be a determining
factor.).
We conclude that a genuine issue of material fact exists in that regard, and thus, the trial
court erred in granting summary disposition in favor of defendant. The trial court, in applying
the McDonnell Douglas test, concluded that plaintiff presented no evidence refuting defendants
articulated legitimate justifications for firing plaintiff and did not meet her burden to establish
that those reasons were a pretext for retaliation. However, a jury could find plaintiffs and
Billss assertions credible, see Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475
(1994) (stating that a trial court may not weigh the credibility of witnesses in reviewing a motion
for summary disposition), and reasonable minds could differ regarding whether plaintiffs
protected activity was a substantial or motivating factor in Girardins termination of plaintiff, see
Innovative Foster Care, 285 Mich App at 475. Defendant presented evidence of plaintiffs
violations of company policies that could have served as the basis for her termination. But that
does not rule out the possibility that Girardin was nevertheless motivated to fire plaintiff because
she reported a violation of law to the State. Girardin flatly denies that she made the statements
alleged by plaintiff and Bills and that she thereafter treated plaintiff with hostility as asserted by
plaintiff and Herber. Such evidence would have critical role in a fact-finders ultimate
determination of the case.
Furthermore, the record reveals that there was a marked difference between the
employment-related evaluations from before and after plaintiff reported defendants violation of
law to the State. Specifically, Girardins stated reasons for formalizing plaintiffs violations of
company policy (to which plaintiff claims she was treated differently than other employees)
occurred not only after she reported the violation of law to the State, but also after she filed this
lawsuit.
Accordingly, viewing the evidence in a light most favorable to plaintiff, defendant is not
entitled to summary disposition as a matter of law because genuine issues of material fact exist
regarding the causation requirement of plaintiffs WPA claim. See id.
-7-
We reverse the trial courts order granting summary disposition and remand for further
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Douglas B. Shapiro

/s/ Peter D. OConnell
-8-
EXHIBIT 6
THE WHISTLEBLOWERS' PROTECTION ACT
Act 469 of 1980
AN ACT to provide protection to employees who report a violation or suspected violation of state, local, or
federal law; to provide protection to employees who participate in hearings, investigations, legislative
inquiries, or court actions; and to prescribe remedies and penalties.
History: 1980, Act 469, Eff. Mar. 31, 1981.
The People of the State of Michigan enact:
15.361 Definitions.
Sec. 1. As used in this act:
(a) Employee means a person who performs a service for wages or other remuneration under a contract
of hire, written or oral, express or implied. Employee includes a person employed by the state or a political
subdivision of the state except state classified civil service.
(b) Employer means a person who has 1 or more employees. Employer includes an agent of an employer
and the state or a political subdivision of the state.
(c) Person means an individual, sole proprietorship, partnership, corporation, association, or any other
legal entity.
(d) Public body means all of the following:
(i) A state officer, employee, agency, department, division, bureau, board, commission, council, authority,
or other body in the executive branch of state government.
(ii) An agency, board, commission, council, member, or employee of the legislative branch of state
government.
(iii) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school
district, special district, or municipal corporation, or a board, department, commission, council, agency, or
any member or employee thereof.
(iv) Any other body which is created by state or local authority or which is primarily funded by or through
state or local authority, or any member or employee of that body.
(v) A law enforcement agency or any member or employee of a law enforcement agency.
(vi) The judiciary and any member or employee of the judiciary.
15.362 Discharging, threatening, or otherwise discriminating against employee reporting

violation of law, regulation, or rule prohibited; exceptions.
Sec. 2. 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.
15.363 Civil action in circuit court for injunctive relief or actual damages; damages
defined; clear and convincing evidence required.
Sec. 3. (1) A person who alleges a violation of this act may bring a civil action for appropriate injunctive
relief, or actual damages, or both within 90 days after the occurrence of the alleged violation of this act.
(2) An action commenced pursuant to subsection (1) may be brought in the circuit court for the county
where the alleged violation occurred, the county where the complainant resides, or the county where the
person against whom the civil complaint is filed resides or has his or her principal place of business.
(3) As used in subsection (1), damages means damages for injury or loss caused by each violation of this
act, including reasonable attorney fees.
(4) An 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.
History: 1980, Act 469, Eff. Mar. 31, 1981;Am. 1982, Act 146, Eff. Mar. 30, 1983.
Rendered Sunday, September 10, 2017 Page 1 Michigan Compiled Laws Complete Through PA 117 of 2017
Legislative Council, State of Michigan Courtesy of www.legislature.mi.gov
15.364 Court judgment; order; remedies; awarding costs of litigation.
Sec. 4. A court, in rendering a judgment in an action brought pursuant to this act, shall order, as the court
considers appropriate, reinstatement of the employee, the payment of back wages, full reinstatement of fringe
benefits and seniority rights, actual damages, or any combination of these remedies. A court may also award
the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees,
if the court determines that the award is appropriate.
15.365 Violation; civil fine.

Sec. 5. (1) A person who violates this act shall be liable for a civil fine of not more than $500.00.
(2) A civil fine which is ordered pursuant to this act shall be submitted to the state treasurer for deposit in
the general fund.
15.366 Diminishment or impairment of rights; collective bargaining agreement; protection of

confidentiality of communications; disclosures.
Sec. 6. This act shall not be construed to diminish or impair the rights of a person under any collective
bargaining agreement, nor to permit disclosures which would diminish or impair the rights of any person to
the continued protection of confidentiality of communications where statute or common law provides such
protection.
History: 1980, Act 469, Eff. Mar. 31, 1981;Am. 1982, Act 146, Eff. Mar. 30, 1983.
15.367 Employer not required to compensate employee for participation in investigation,

hearing, or inquiry.
Sec. 7. This act shall not be construed to require an employer to compensate an employee for participation
in an investigation, hearing or inquiry held by a public body in accordance with section 2 of this act.
15.368 Posting notices of protections and obligations required.

Sec. 8. An employer shall post notices and use other appropriate means to keep his or her employees
informed of their protections and obligations under this act.
15.369 Short title.

Sec. 9. This act shall be known and may be cited as the whistleblowers' protection act.
EXHIBIT 7
(b) Unless excused by the court, the moving party must appear at a hearing on the
motion. A moving party who fails to appear is subject to assessment of costs under
subrule (E)(4)(c); in addition, the court may assess a penalty not to exceed $100,
payable to the clerk of the court.
(c) If a party violates the provisions of subrule (E)(4)(a) or (b), the court shall
assess costs against the offending party, that party's attorney, or both, equal to the
expenses reasonably incurred by the opposing party in appearing at the hearing,
including reasonable attorney fees, unless the circumstances make an award of
expenses unjust.
(F) Motions for Rehearing or Reconsideration.
(1) Unless another rule provides a different procedure for reconsideration of a decision
(see, e.g., MCR 2.604[A], 2.612), a motion for rehearing or reconsideration of the
decision on a motion must be served and filed not later than 21 days after entry of an
order deciding the motion.
(2) No response to the motion may be filed, and there is no oral argument, unless the
court otherwise directs.
(3) 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. The moving
party 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.
(G) Motion Fees. The following provisions apply to actions in which a motion fee is
required:
(1) A motion fee must be paid on the filing of any request for an order in a pending
action, whether the request is entitled motion, petition, application, or
otherwise.
(2) The clerk shall charge a single motion fee for all motions filed at the same time in
an action regardless of the number of separately captioned documents filed or the
number of distinct or alternative requests for relief included in the motions.
(3) A motion fee may not be charged:
(a) in criminal cases;
(b) for a notice of settlement of a proposed judgment or order under MCR

2.602(B);
(c) for a request for an order waiving fees under MCR 2.002 or MCL 600.2529(4)
or MCL 600.8371(6);
Chapter 2. Civil Procedure Page 44 Last Updated September 1, 2017

EXHIBIT 8
9/18/2017 14th Amendment | Constitution | US Law | LII / Legal Information Institute

Cornell Law School
U.S. Constitution 14th Amendment
14th Amendment
The Fourteenth Amendment addresses many aspects of citizenship and the rights of citizens. The most commonly used -- and frequently litigated --
phrase in the amendment is "equal protection of the laws", which figures prominently in a wide variety of landmark cases, including Brown v. Board
of Education (racial discrimination), Roe v. Wade (reproductive rights), Bush v. Gore (election recounts), Reed v. Reed (gender discrimination), and
University of California v. Bakke (racial quotas in education). See more...
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein
they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any
state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of
the laws.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in
each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the
United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any
of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male
citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
Section 3.
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the
United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a
member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have
engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
Section 4.
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in
suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts,
obligations and claims shall be held illegal and void.
Section 5.
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
wex resources
Section 1.
Privileges and Immunities Clause
Civil Rights
Slaughterhouse Cases
Due Process
Substantive Due Process
Right of Privacy: Personal Autonomy
Territorial Jurisdiction
Equal Protection
Plessy v. Ferguson (1896)
https://www.law.cornell.edu/constitution/amendmentxiv 1/2
EXHIBIT 9
STATE CONSTITUTION (EXCERPT)
CONSTITUTION OF MICHIGAN OF 1963
17 Self-incrimination; due process of law; fair treatment at investigations.
Sec. 17. No person shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty or property, without due process of law. The right of all individuals, firms, corporations and
voluntary associations to fair and just treatment in the course of legislative and executive investigations and
hearings shall not be infringed.
History: Const. 1963, Art. I, 17, Eff. Jan. 1, 1964.
Former constitution: See Const. 1908, Art. II, 16.
EXHIBIT 10
EXHIBIT 11
EXHIBIT 12
EXHIBIT 13
EXECUTIVE SESSION
FINANCE/PERSONNEL COMMITTEE
American Legion Department of Michigan
Friday, September 25, 2014
In Muskegon MI
LLTOORPER
W:m.:m Catlson called the meeting to order at 11:32 a.m. at the Holiday Inn Muskegon Harbor.
1,1.. CAT.I.
: foUowing members were present: Ray Carlson: Chairman, David Buist, Roger Avie, Eddie Brown, Don Meskill,
)rge DolaD: Finance Officer, Jim. Wallace: Stnte Com.mnnder, Pabick Lafferty & Ron Runyan: State Adjutant, G1.ry
'e.cling: VA&R Director.
:re are three items for discussion.
rge Dolan reviewed committee budgets nom 2013-2014 and advised the committee to look at the committee
~et51expenses closely before approving future budgets. Eddie Brown suggested looking at who gets c:illed to
erCDces and conventions. Intemal Aff:ili:s can review committee roles of procedures to see if changes are w:ur.mted.
t Koets law suit: Pat Lafferty stated that the V.A. cbim filed by Scott Koel's lawyer has been settled by our Loomis
Firm for $10,500. This includes Scott's attomey fee of $1500. Department's insurance will pay $8,000. Department
)ay the additional $2500. Gaty Easterling needs to spend $1000 to upgrade their copy machine giving it a &x
:lility so service officers can fax & track cbims &om their desks. The money is already in the budget. Guy Garvin. is
to work four days per week now. Phil Babcock is off worle while his wife & daughter recover from an ac~dent.
Iloyee Issue: Denise Koets continues to be difficult to manage. She doesn't get along well with co-womers. Her
cial abilities seem limited. She continually causes problems with the staf Department's Bna.oce a.od payroll could
ion okay without Denise present. There might be a bump OJ: two, but payron would be handled. Ron Runyan stated
le can't seem to t efficient answers from Denise ~ . financial issues.
ots of discussion foUowed. Ron
an is working on some cross;; g to p vmte some of Denise's responsibilities. A motion was made by
r: Avie and seconded by George Dolan to release Denise Koets from em 10. eat beause ofinnd te
anance of her duties. The motion passed.
:ctfully submitted,
:u1son, Chainnan David Buist, Vice Chajnn:JD

Acting Secretary
DEFENDANT'S
i EXHIBIT
j I R
AL001306

Appeal (09.19.17)

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RECEIVED by MSC 9/19/2017 4:23:54 PM

IN THE MICHIGAN SUPREME COURT

DENISE M. KOETS, and

PLAINTIFFS-APPELLANTS APPLICATION FOR LEAVE TO APPEAL

if the decision is allowed to stand.

Dated: September 19, 2017 /s/ Karen S. Kienbaum_____________

21 Kercheval Ave., Ste. 240

INDEX OF AUTHORITIES.......................................................................................................... iii

STATEMENT OF THE JUDGMENT APPEALED FROM ......................................................... v

QUESTIONS PRESENTED FOR REVIEW ................................................................................ vi

BRIEF IN SUPPORT OF ............................................................................................................... 1

APPLICATION FOR LEAVE TO APPEAL ................................................................................. 1

I. Introduction and Grounds for Application .......................................................................... 1

II. Procedural History .............................................................................................................. 2

III. Statement of Facts ............................................................................................................... 3

A. Plaintiff Denise Koets ............................................................................................. 3

B. Scott Koets Disability Claim ................................................................................. 4

D. Defendant Engages in Write-ups of Plaintiffs Work as a Pretext to

1. Write-up on Release of Confidential Information .................................... 10

2. Write-up on IRS Audit Activity................................................................ 11

3. Write-up on Raffle Snafu .......................................................................... 12

4. The Write-up on Undeposited Checks ...................................................... 14

E. American Legion Disregard of Veterans Rights and Reports by Plaintiff .......... 15

IV. Arguments ......................................................................................................................... 19

A. ARGUMENT ONE: PLAINTIFF-APPELLANT DENISE KOETS HAS

Principle Point of Argument: The Court of Appeals, instead of

1. The Standard for Summary Disposition Under MCR 2.116(C)(10)......... 20

2. The Parameters of the WPA ..................................................................... 22

3. The American Legion is a Public Body under the WPA .......................... 22

4. Plaintiff Denise Koets engaged in protected activity in Reporting

5. Plaintiff Has Met the WPA Burden of Proof ............................................ 23

B. ARGUMENT TWO: PLAINTIFF-APPELLANT SCOTT KOETS HAS

Principle Point of Argument: Plaintiff Scott Koets has made out a

C. ARGUMENT THREE: PLAINTIFFS-APPELLANTS WERE DENIED

Principle Point of Argument: In denying Plaintiffs the right to respond

V. Relief Sought .................................................................................................................... 33

ADDENDUM I EXHIBITS ....................................................................................................... 34

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) .......................................................................... 32

Duffy v. Throwbridge, 335 So.2d 30, 32 (La. 1976) .................................................................... 32

McNeil-Marks v Midmichigan Medical Center-Gratiot, 316 Mich. App. 1; 891 N.W.2d

Parratt v. Taylor, 451 U.S. 527, 540 (1981) ................................................................................. 31

Michigan Court Rules

MCR 2.116(C)(10).............................................................................................................. 9, 20, 21

MCR 2.119(F)(2) .......................................................................................................................... 30

MCR 2.119(F)(3) .......................................................................................................................... 30

MCR 7.203(A)(1) .......................................................................................................................... vi

MCR 7.303(B)(1) ............................................................................................................................ 2

MCR 7.305(B)(5)(a) ....................................................................................................................... 2

38 CFR Section 14.632 ............................................................................................................. 4, 23

U.S. Const. Amend XIV .......................................................................................................... vi, 29

MI Const. 1963. Art I, 17 ...................................................................................................... vi, 29

Plaintiffs-Appellants seek leave to appeal the Court of Appeals unpublished opinion of

to the American Legion, attached hereto as Exhibit 2.

under the Michigan Whistleblowers Protection Act?

Plaintiffs-Appellants say yes.

Plaintiffs-Appellants say yes.

The trial court said no.

Plaintiffs-Appellants say yes.

I. Introduction and Grounds for Application

Michigan Whistleblowers Protection Act (WPA) (attached hereto as Exhibit 6).

material injustice if the decision is allowed to stand. Accordingly, Plaintiffs-Appellants request

remand the case to the trial court for trial.

II. Procedural History

On January 5, 2015, Plaintiffs-Appellants filed suit in Ingham County Circuit Court,