Thomas D Esordi v. MacOmb Township

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

THOMAS D. ESORDI, FOR PUBLICATION

August 29, 2025

Plaintiff-Appellant, 10:36 AM

v No. 366541

Macomb Circuit Court

TOWNSHIP OF MACOMB, JANET I. DUNN, and LC No. 2020-001432-CD

KRISTI L. POZZI,

Defendants-Appellees.

Before: GADOLA, C.J., and RICK and YATES, JJ.

GADOLA, C.J.

Plaintiff, Thomas D. Esordi, appeals as of right the trial court’s opinion and order granting

summary disposition of plaintiff’s claims under the Whistleblowers’ Protection Act (WPA), MCL

15.369 et seq., in favor of defendants, Township of Macomb, Janet I. Dunn, and Kristi L. Pozzi.

Plaintiff also appeals the trial court’s previous order granting defendants summary disposition of

plaintiff’s breach-of-contract and public policy-based retaliation claims. We affirm.

I. FACTS

Plaintiff is an attorney who began working as outside counsel for the Township of Macomb

(the Township) in 2011. In January 2017, plaintiff was hired by the Township as a full-time

employee in a newly-created dual position of general counsel and human resources (HR) director.

Plaintiff was supervised by the township supervisor, Janet Dunn. Plaintiff’s employment

agreement provided that “all disciplinary action or discharge shall be for just cause.” The contract

had no term of employment.

Plaintiff’s contract was approved by a majority vote of the Board, and plaintiff began his

full-time employment. At the time, the Township Board consisted of: Dunn as supervisor; Kristi

Pozzi as clerk; Karen Goodhue as treasurer; and Dino Bucci, Timothy Bussineau, Roger

Krzeminski, and Nancy Nevers as trustees. In November 2017, plaintiff responded to a grand jury

subpoena issued to the Township regarding payment for the paving of a parking lot. The same

month, trustee Dino Bucci was indicted on several federal theft and bribery charges, and resigned

from the Board.

-1-

In May 2018, Jim Gillis, the local American Federation of State, County, and Municipal

Employees (AFSCME) union chair, drafted a memorandum expressing concerns that plaintiff’s

dual role of general counsel/HR director was not in the union’s best interests. In April 2019, then-

township planner Patrick Meagher drafted a letter of resignation, indicating there was a “distinct

disconnect” between township department heads and plaintiff, and that the dual position created a

conflict. The same month, a township HR employee filed a grievance claiming plaintiff subjected

her to a hostile work environment. In May 2019, over 20 department heads signed a memorandum

indicating that plaintiff’s dual role created a negative work environment and requested the

positions of HR director and general counsel be separated.

In October 2019, being concerned with the possible creation of a new ethics ordinance and

ethics board, Dunn told plaintiff that in 2016 she met Bucci at a restaurant and he gave her an

envelope of money and said to Dunn, “The developers want you to have this.” Dunn estimated

this was around the time of Bucci’s federal indictment. Dunn told plaintiff that she did not know

how much money was in the envelope, and that she had given the money to various people who

needed money and to her church. Plaintiff testified that in the same conversation with Dunn, Dunn

told plaintiff she believed other township employees knew Bucci had given her the envelope, and

that they had used this information against her. Plaintiff reported this information to the

Department of Justice (DOJ) the day after his conversation with Dunn.

Although directed by the Board in May 2019 to evaluate plaintiff’s job performance, it was

not until January 10, 2020, that Dunn e-mailed certain township employees to complete

anonymous evaluations of plaintiff and return them to a physical drop box by January 17, 2020.

Dunn, Pozzi, and Goodhue reviewed the evaluations, which indicated that most employees thought

plaintiff was incompetent and unprofessional. On January 21, 2020, plaintiff asked the township

information technology (IT) department for access to security footage from the board room, which

would reveal who had placed the anonymous evaluations in the designated drop box.

The next day, plaintiff e-mailed the Board a confidential memorandum stating that he had

made a report to the DOJ, which had occurred approximately four months earlier. The

memorandum stated, in full:

This is to advise that while employed here, I became aware of non-

confidential information relating to a possible crime or crimes involving a current

Board member or members. I have reported the non-confidential information to

the Federal authorities. I am assuming the Federal authorities are following up

appropriately. I am not at liberty to discuss the matter further.

Plaintiff testified that he was referring to Dunn receiving money from Bucci in the memorandum.

Plaintiff admitted that Goodhue shared the negative results of his performance evaluations with

him before he sent the memorandum to the Board members. The same day plaintiff sent the

memorandum, or the day after, Dunn placed plaintiff on paid administrative leave. Plaintiff

testified that Dunn told him that he was placed on leave “because of” the memorandum, which she

said constituted “insubordination and blackmail.” However, Dunn testified that her decision to

place plaintiff on paid leave was based on the negative evaluations and plaintiff trying to access

the surveillance footage, which she believed he had done in order to identify the employees who

had submitted negative evaluations of him.

-2-

Dunn and Pozzi retained attorney Dean T. Yeotis to review plaintiff’s evaluations and

determine whether just cause existed to terminate plaintiff. Yeotis drafted a report based on the

evaluation results, and concluded that just cause existed to terminate plaintiff’s employment. On

February 19, 2020, the Board voted 4-2 that just cause existed to fire plaintiff. Dunn recused

herself, and did not vote. But plaintiff remained on paid leave because it was determined that he

was entitled to a Loudermill hearing before termination.1

Plaintiff filed this suit on April 20, 2020; however, the Loudermill hearing did not occur

until April 29, 2020. After the hearing, the Board voted on whether just cause existed to terminate

plaintiff’s employment. Dunn recused herself from both the hearing and the vote on plaintiff’s

continued employment. The Board deadlocked 3-3, which meant the motion to terminate

plaintiff’s employment failed. As a result of the failed vote, plaintiff returned to his employment

on May 11, 2020. At all times that plaintiff was on administrative leave, he received his full pay

and benefits, and he received the same pay and benefits after he returned.

A new Township Board was elected and seated in November 2020. Dunn decided to retire,

and did not run for reelection. Frank J. Viviano was elected as the new township supervisor.

Plaintiff testified that on Viviano’s first day, Viviano told him there was no room for general

counsel in the new administration, he was directed to go home, and he never returned. Viviano

testified that he told plaintiff he was going to dissolve plaintiff’s combined position, but that

plaintiff could apply for either position once the jobs were separately posted. At the November

24, 2020 board meeting, the Board voted to dissolve the combined position, and plaintiff did not

apply for either role once the separate positions were posted. The new board members who

testified indicated that they voted in favor of dissolving the dual position based on the potential for

conflicts of interest between the jobs of general counsel and HR Director.

Plaintiff’s initial complaint alleged violation of the WPA, violation of public policy for

reporting violations of the Standards of Conduct for Public Officers and Employees Act, MCL

15.341 et seq., and breach of contract. The parties stipulated to allow plaintiff to amend his

complaint after his Loudermill hearing, so plaintiff’s first amended complaint added a claim for

“retaliation in violation of Michigan’s [WPA]/public policy.” After plaintiff’s termination, the

court allowed plaintiff to amend the complaint again, and the second amended complaint added a

count for denial of due process in violation of 42 USC § 1983. This claim was removed to federal

district court, which remanded plaintiff’s remaining state-law claims to the circuit court.2

1

Cleveland Bd of Ed v Loudermill, 470 US 532; 105 S Ct 1487; 84 L Ed 2d 494 (1985). A

Loudermill hearing is a pre-termination hearing for public employees with a property interest in

their job. Id. at 538-539, 545. The hearing provides the employee an opportunity to respond to

allegations. Id. at 545-546.

2

The federal court ultimately granted defendants summary judgment of plaintiff’s due-process

claim because (1) plaintiff failed to establish that he had a constitutionally-protected property

interest in continued employment with the Township, (2) Dunn and Pozzi did not participate in the

-3-

The Township moved for partial summary disposition of plaintiff’s claims for breach of

contract, violation of public policy, and retaliation in violation of the WPA and public policy.

Defendants Dunn and Pozzi concurred in the motion. The trial court granted defendants summary

disposition of these claims, concluding that plaintiff’s employment agreement was void as against

public policy, and plaintiff’s public policy-based claims were preempted by plaintiff’s WPA claim

because the WPA provided plaintiff with the exclusive remedy for his termination. Plaintiff moved

under MCR 2.604(A) to set aside the order dismissing his breach-of-contract claim.3 The trial

court denied the motion.

Subsequently, each defendant separately moved for summary disposition of plaintiff’s last

remaining claim under the WPA. Each defendant argued that plaintiff could not establish a prima

facie case under the WPA, and even if he could, the legitimate business reasons offered by

defendants for the actions taken against plaintiff were not mere pretext. The trial court granted

defendants summary disposition of plaintiff’s WPA claims. Plaintiff now appeals.

II. BREACH OF CONTRACT

The trial court did not err by granting summary disposition of plaintiff’s breach-of-contract

claim, nor did it abuse its discretion by denying plaintiff’s motion to set aside this decision, because

plaintiff’s employment agreement was void as against public policy.

A. STANDARDS OF REVIEW

The Township initially moved for partial summary disposition of plaintiff’s breach-of-

contract claim under MCR 2.116(C)(8) and (10). In its opinion and order, the trial court granted

summary disposition of plaintiff’s breach-of-contract claim under MCR 2.116(C)(10). This Court

reviews a trial court’s decision to grant or deny summary disposition de novo. Glasker-Davis v

Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020). “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.” Id. “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.”

Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 475; 776 NW2d 398 (2009)

(quotation marks and citation omitted).

The interpretation of statutes and court rules is reviewed de novo. Allison v AEW Capital

Mgt, LLP, 481 Mich 419, 424; 751 NW2d 8 (2008). The goal of statutory interpretation is to

decision forming the basis of plaintiff’s procedural due-process claim, and (3) Pozzi was entitled

to qualified immunity.

3

This court rule provides, in part, that “an order or other form of decision adjudicating fewer than

all the claims, or the rights and liabilities of fewer than all the parties, does not terminate the action

as to any of the claims or parties, and the order is subject to revision before entry of final judgment

adjudicating all the claims and the rights and liabilities of all the parties.” MCR 2.604(A).

-4-

ascertain the legislative intent that may be reasonably inferred from the words of the statute, and

if the words are clear, it is presumed that the Legislature intended the meaning expressed. Id. at

427. A lower court’s determination of the public policy of this state is a question of law that is

also reviewed de novo. Ingham Co v Mich Co Rd Comm Self-Ins Pool, 508 Mich 461, 476; 975

NW2d 826 (2021).

Plaintiff raised the arguments he now raises on appeal in his motion to set aside the court’s

order. The Township asserts, however, that the trial court’s order denying plaintiff’s motion to set

aside is not before this Court because plaintiff did not raise it in the statement of questions

presented section of his brief on appeal or otherwise articulate it as an issue on appeal. It is true

that “[i]ndependent issues not raised in the statement of questions presented are not properly

presented for appellate review,” and need not be reviewed by the Court. Bouverette v

Westinghouse Electric Corp, 245 Mich App 391, 404; 628 NW2d 86 (2001). However, “[i]t is

generally the case that interlocutory orders are reviewable as of right in conjunction with any

appeal of right following entry of a final order.” Attorney General v Mich Pub Serv Comm, 237

Mich App 27, 39-40; 602 NW2d 207 (1999). Thus, the trial court’s decision to deny plaintiff’s

motion to set aside is reviewed for an abuse of discretion. See Bowers v VanderMeulen-Bowers,

278 Mich App 287, 295; 750 NW2d 597 (2008). “A trial court abuses its discretion when it selects

an outcome that is not within the range of reasonable and principled outcomes.” Id.

B. ANALYSIS

The trial court held that plaintiff’s employment contract violated public policy under the

reasoning of Hazel Park v Potter, 169 Mich App 714, 720; 426 NW2d 789 (1988), because the

“just-cause” provision of his employment contract improperly bound successor township boards.

Plaintiff asserts the trial court’s reliance on Potter was error because it is inconsistent with the

Supreme Court’s earlier ruling in Davis v Pub Sch of Escanaba, 175 Mich 105; 140 NW 1001

(1913). We disagree.

In Potter, 169 Mich App at 715, the defendant had been employed as city manager of the

City of Hazel Park for 13 years when a majority of the city council lost reelection or retired. The

outgoing council executed a written employment contract with the defendant indicating that he

could only be terminated for just cause. Id. at 716. Once the new council was seated, it voted to

terminate the defendant’s employment. Id. at 717. The plaintiff city sought a declaratory judgment

that the defendant’s contract was invalid. Id. The trial court granted summary disposition to the

city, ruling that the defendant’s contract was void because it infringed on the incoming council’s

right to appoint a city manager. Id. at 717-718. On appeal, this Court found that “[t]he issue of

whether an outgoing city council may enter into an employment contract which would bind a future

city council is one of first impression in Michigan.” Id. at 719. After considering the law of other

states, this Court determined that the majority rule was that the employment of public officers is a

governmental function, and a city council “cannot engage a public officer by contract for a term

extending beyond that of its own members, so as to impair the right of their successors to remove

such officer and to appoint another in his place.” Id. at 720 (quotation marks, citations, and

emphasis omitted). Thus, this Court held that the defendant’s contract with the outgoing council

was “void since it deprives the incoming council of its power to select and appoint a city manager

as provided in the city charter,” and “void on the basis of public policy grounds since it takes away

-5-

the governmental or legislative power of the incoming council to appoint and remove public

officers.” Id. at 722-723.

Here, plaintiff’s employment contract clearly extended beyond the term of the Board that

approved it, as the contract had no termination date, and like the contract in Potter, provided that

plaintiff could only be terminated for just cause. Under the rule established in Potter, plaintiff’s

contract is void because it deprived the Board of its statutory power to select and appoint a

township employee under MCL 41.75a. This statute provides, “The township board may employ

a township manager and other employees as are necessary. They shall serve at the pleasure of the

township board . . . .” As this Court held in Potter, plaintiff’s contract was void as a matter of

public policy because it had no termination date and it severely limited the new Board’s power to

appoint a general counsel and HR director of its own choosing due to its just cause termination

provision. See Potter, 169 Mich App at 722-723.

Plaintiff argues that the trial court erred by relying on Potter because it is inconsistent with

the Supreme Court’s earlier ruling in Davis, 175 Mich 105. In Davis, id. at 106-107, the plaintiff

entered a three-year contract with the defendant school board to be superintendent of schools.

Under Act 215 of the Public Acts of 1895, § 3347, the school board was given the authority to hire

a superintendent. Davis, 175 Mich at 106. When the composition of the school board later

changed, the new board terminated the plaintiff. Id. at 107-108. Plaintiff filed suit, and judgment

was entered in favor of the school board upon a determination that the contract was invalid because

it extended beyond the term of all members of the school board. Id. at 110. On appellate review

the Supreme Court considered the “power of boards or officers representing municipal or quasi

municipal corporations to make contracts for the services of others for periods beginning or,

extending beyond the official lives of such boards or officers, or some of them.” Id. at 112. The

parties in Davis agreed that the contract was valid, but disagreed whether its term was for a

reasonable time or for the length of the school board members’ terms. Id. at 115-116. The

Supreme Court held that the only limits on the school board’s power to employ a superintendent

“are those fixed by reasonableness and good faith” because the school board derived its power

from the statute. Id. at 118. “Within reason and in good faith the powers conferred by the

Legislature upon the board should be exercised by the board. There is nothing novel in this

doctrine.” Id. at 119. Thus, the judgment entered in favor of the school board was reversed. Id.

The Potter decision is binding precedent and analogous to the facts of this case. See

Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607 (2018) (this Court is

“not strictly required to follow uncontradicted opinions from this Court decided before November

1, 1990, but [] they are nevertheless considered to be precedent and entitled to significantly greater

deference than are unpublished cases”), citing MCR 7.215(C)(1); Straman v Lewis, 220 Mich App

448, 451; 559 NW2d 405 (1996) (the publication of an opinion of the Court of Appeals creates

binding precedent until the Michigan Supreme Court enters a decision altering this Court’s

decisions or its rationale), citing MCR 7.215(C)(2). There has been no case by the Supreme Court

overruling Potter, and no case from this Court calling its analysis into question.

The trial court did not err by applying Potter, rather than Davis. The facts of Davis are

distinguishable because that case concerned a school superintendent, rather than a township

attorney, and the Court’s analysis was dependent on a statute that has since been repealed. Davis,

175 Mich at 106-107. Furthermore, the only aspect of the contract at issue in Davis concerned the

-6-

length of the contract, which was three years. Davis did not involve a “just cause” termination

provision, which is before us in this case, and which made plaintiff’s contract indefinite in nature

in the absence of just cause. Indeed, the Court in Davis, in imposing a reasonableness and good

faith limitation on the school board’s authority to hire a superintendent, suggested that a contract

of 50 years’ duration would be set aside as fraudulent. Id. at 118. That the Court in Davis

concluded that the school board had statutory authority to hire a superintendent of schools for a

period of 3 years does not ipso facto mean that a just cause termination provision in a public

employee’s employment contract cannot be set aside, even under the reasonableness and good

faith standard enunciated in Davis. Had plaintiff’s contract simply been for a reasonable term of

years beyond the life of the Board that initially approved it, the rule set forth in Davis might apply

here to justify plaintiff’s contract. But that is not this case.

Moreover, the Supreme Court has not concluded that Potter was wrongly decided or that

it is inconsistent with Davis, so Potter remains good law. See Straman, 220 Mich App at 451; see

also Pew v Mich State Univ, 307 Mich App 328, 334; 859 NW2d 246 (2014) (“Principles of stare

decisis require us to reach the same result in a case that presents the same or substantially similar

issues as a case that another panel of this Court has decided.”). Thus, the trial court did not abuse

its discretion by denying plaintiff’s motion to set aside its opinion dismissing his breach-of-

contract claim based on any alleged failure to follow Davis, which is factually distinguishable and

relied on a repealed statute, rather than Potter, which is more directly analogous to the facts of this

case.

Next, plaintiff asserts that under Terrien v Zwit, 467 Mich 56; 648 NW2d 602 (2002), the

public policy that may serve to void an otherwise valid contract is limited to the state or federal

constitution, Michigan statute, or Michigan common law, but the public policy in Potter was not

grounded in a constitution, statute, or the common law because the Court framed it as an issue of

first impression. The Supreme Court, more recently than Terrien, has held that contract provisions

must yield to public policy, which must be rooted in the state or federal constitution, state statute,

or the common law. Ingham Co, 508 Mich at 484. It has long been recognized that contracts or

any provisions contained within them are void if they are in contravention of public policy. See

generally, Raska v Farm Bureau Mut Ins Co of Mich, 412 Mich 355, 361-362; 314 NW2d 440

(1982). In Potter, the city manager’s contract providing for termination for just cause was void as

against public policy because it violated the city charter provision indicating that the city manager

“shall hold office at the pleasure of the Council.” Potter, 169 Mich App at 719. While the Court

in Terrien limited the definition of public policy to policies rooted in the state or federal

constitution, state statute, or common law, the Michigan Constitution grants cities the power to

adopt and amend a charter. Const 1963, art 7, § 22. Thus, a city’s legislative powers are ultimately

rooted in the Michigan Constitution. The holding of Potter that the defendant city manager’s

contract was void as against public policy was based on common law and the Michigan

Constitution, and does not run afoul of Terrien or Ingham Co.

Plaintiff next argues that even if Potter applies, there is an exception recognized in Potter

that a contract authorized by statute is exempt from the majority rule that an employment contract

that extends past the life of the board is void as against public policy. In Potter, 169 Mich App at

721-722, the Court recognized a Florida case, Tweed v City of Cape Canaveral, 373 So 2d 408

-7-

(Fla App, 1979), which follows this exception.4 For the exception to apply, the statute must

“clearly authorize[] the council to make a contract extending beyond its own term.” Potter, 169

Mich App at 719, citing 56 Am Jur 2d, Municipal Corporations, § 154, pp 206-208. Plaintiff relies

on MCL 41.187, which provides that “[t]he township board of a township may employ an attorney

to represent the township in civil matters and in the prosecution of violations of township

ordinances.” On its face, this does not “clearly authorize” the council to make a contract extending

beyond its term. Plaintiff points out that the Florida statute relied on in Tweed did not include an

explicit provision allowing the contract to extend beyond the terms of the council; however, Potter

remains good law, Straman, 220 Mich App at 451, and this Court must follow the exception as

applied in the limited manner provided in Potter, rather than as provided in Tweed, a nonbinding

decision. Thus, because the plain language of MCL 41.187 does not give the Board authority to

enter contracts extending beyond the terms of the members, the exception does not apply.

Lastly, plaintiff argues that summary disposition of his breach-of-contract claim was in

error because his employment contract was business or proprietary in nature, rather than legislative

or governmental, and under Potter, a municipal body can bind its successors for business or

proprietary contracts. This argument is unavailing. The Potter Court determined that the

appointment of a city manager was a governmental function. Id. at 722-723. Later in the same

year that Potter was decided, this Court stated that

where the nature of an office or employment is such as to require a municipal board

or officer to exercise a supervisory control over the appointee or employee, together

with the power of removal, such employment or contract of employment by the

board, it has been held, is in the exercise of a governmental function, and contracts

relating thereto must not be extended beyond the life of the board. [Johnson v

Menominee, 173 Mich App 690, 694; 434 NW2d 211 (1988).]

Plaintiff’s employment contract provided that he was to report to the Township Board of Trustees

and was “under the general direction of the township Supervisor.” It was also within the Board’s

sole discretion to terminate plaintiff’s employment. Plaintiff’s contract was legislative or

governmental in nature, not business or proprietary, and the majority rule of Potter applies to

render it void as against public policy.

III. WHISTLEBLOWERS’ PROTECTION ACT

The trial court granted defendants summary disposition of plaintiff’s WPA claim under

MCR 2.116(C)(10), making our review de novo. Glasker-Davis, 333 Mich App at 229.

Additionally, the determination of whether the record evidence establishes a prima facie case under

the WPA is a question of law that this Court reviews de novo. Hays v Lutheran Social Servs of

Mich, 300 Mich App 54, 59; 832 NW2d 433 (2013).

4

“Caselaw from sister states and federal courts is not binding precedent but may be relied on for

its persuasive value.” Haydaw v Farm Bureau Ins Co, 332 Mich App 719, 726 n 5; 957 NW2d

858 (2020).

-8-

The WPA was enacted in 1981 with the underlying purpose of protection of the public.

Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378-379; 563 NW2d 23 (1997).

The WPA protects employees who report a violation or suspected violation of state, local, or

federal law. Whitman v City of Burton, 493 Mich 303, 312; 831 NW2d 223 (2013). By shielding

employees from retaliation, the WPA incentivizes employees to assist law enforcement and make

public allegedly corrupt or criminal behavior. Dolan, 454 Mich at 378. “Among other things, the

WPA makes it illegal for an employer to retaliate against an employee because the employee has

reported a violation of the law.” Chandler v Dowell Schlumberger Inc, 456 Mich 395, 396; 572

NW2d 210 (1998). Because the WPA is remedial in nature, courts must construe the statute

liberally to effectuate its purpose of protecting whistleblowers. Id. at 406.

Plaintiff brought his claim under MCL 15.362 of the WPA, which provides:

An employer shall not discharge, threaten, or otherwise discriminate against

an employee regarding the employee’s compensation, terms, conditions, location,

or privileges of employment because the employee, or a person acting on behalf of

the employee, reports or is about to report, verbally or in writing, a violation or a

suspected violation of a law or regulation or rule promulgated pursuant to law of

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

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

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

held by that public body, or a court action.

To establish a prima facie case under this section of the WPA, a plaintiff must show that “(1) he

or she was engaged in protected activity as defined by the act, (2) he or she suffered an adverse

employment action, and (3) a causal connection exists between the protected activity and the

adverse employment action.” Whitman, 493 Mich at 313. The plaintiff may rely on direct or

indirect evidence of retaliation to establish a prima facie case under the WPA. McNeill-Marks v

Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 17; 891 NW2d 528 (2016). “ ‘Direct evidence’

is evidence that, if believed, requires the conclusion that unlawful discrimination was at least a

motivating factor in the employer’s actions.” Id. (quotation marks and citation omitted). To

prevail on indirect evidence, the plaintiff must present evidence from which “a factfinder could

infer that the plaintiff was the victim of unlawful retaliation.” Debano-Griffin v Lake Co, 493

Mich 167, 176; 828 NW2d 634 (2013) (quotation marks, citation, and alteration omitted).

If the plaintiff establishes a prima facie case, there is a presumption of retaliation, which

the employer may rebut by offering a legitimate reason for its action. McNeill-Marks, 316 Mich

App at 17-18. A plaintiff may still avoid summary disposition by showing that a reasonable trier

of fact could conclude that the reason offered by the defendant is a mere pretext for unlawful

adverse employment action. Id. at 18. A plaintiff can establish that a defendant’s articulated

legitimate reasons are pretext by showing (1) the reasons had no basis in fact, (2) if they do have

a basis in fact, they were not the actual factors motivating the decision, or (3) if they were factors,

they were jointly insufficient to justify the decision. Feick v Monroe Co, 229 Mich App 335, 343;

582 NW2d 207 (1998). “[T]he proofs offered in support of the prima facie case may be sufficient

to create a triable issue of fact that the employer’s stated reason is a pretext, as long as the evidence

would enable a reasonable factfinder to infer that the employer’s decision had a discriminatory

-9-

[here, retaliatory] basis.” Taylor v Modern Engineering, Inc, 252 Mich App 655, 661; 653 NW2d

625 (2002) (quotation marks and citation omitted).

A. THE TOWNSHIP

The trial court did not err by granting summary disposition to the Township of plaintiff’s

WPA claim based on his November 2020 termination.

“ ‘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.” Chandler, 456 Mich at 399. The

plaintiff must show that he made a report, or that he was about to make a report, by clear and

convincing evidence. Id. at 400. The WPA does not protect employees who discuss reporting a

violation without taking further action. Id. at 402.

The Township acknowledges that plaintiff engaged in protected activity in October 2019,

when he reported potential criminal activity to federal authorities. Plaintiff testified that the day

after Dunn told him that she received an envelope of money from Bucci in 2016, plaintiff reported

it to the DOJ. The affidavit of Assistant US Attorney Michael Bullota confirmed that plaintiff

made this report sometime in 2019. Thus, the first element of plaintiff’s WPA claim is met.

For an action by an employer to constitute an “adverse employment action” under the

WPA, the plaintiff must demonstrate one of the specific adverse employment actions listed in the

statute, Wurtz v Beecher Metro Dist, 495 Mich 242, 251 n 14; 848 NW2d 121 (2014), meaning,

the employee was discharged, threatened, or otherwise discriminated against regarding his or her

compensation, terms, conditions, location, or privileges of employment, MCL 15.362. Plaintiff’s

argument on appeal relates to the November 2020 vote by the Board to dissolve the dual position

and terminate plaintiff’s employment. Thus, plaintiff suffered an adverse employment action.

Although plaintiff established the first two elements of his prima facie case, the trial court

did not err by granting the Township summary disposition of plaintiff’s WPA claim because no

questions of fact exist regarding the third element—causation. “Something more than a temporal

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

causation where discrimination-based retaliation is claimed.” West v Gen Motors Corp, 469 Mich

177, 186; 665 NW2d 468 (2003). “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.” Id. at 184. Here, plaintiff distributed his confidential memorandum, which

described his October 2019 report to law enforcement, in January 2020. The vote to dissolve the

dual position resulting in termination of his employment did not occur until approximately 10

months later, in November 2020, following the election of a new Board. The mere fact that the

termination occurred after plaintiff distributed his memorandum is insufficient to establish

causation between plaintiff’s reporting and his termination. Id. at 186. The Board that actually

voted to terminate plaintiff was comprised of several new members, and although they knew of

plaintiff’s memorandum and his reporting, none who were deposed testified that the memorandum

had anything to do with their vote. Viviano, the new Township Supervisor, testified that he voted

to terminate plaintiff because of actual conflicts of interest inherent in the dual position of general

counsel/HR director. During the November board meeting, Viviano expressed that he thought it

-10-

would be in the best interests of the Township to dissolve the dual role because he believed

employees were discouraged from bringing their grievances to plaintiff as the HR director because

he was simultaneously the legal representative of the Township. Therefore, plaintiff failed to

establish causation and thus failed to present a prima facie case of his WPA claim against the

Township related to his termination, and summary disposition was proper.

B. DUNN

Plaintiff also argues the trial court erred by concluding his period of administrative leave

did not constitute an adverse employment action by Dunn. We disagree.

Again, to establish a prima facie case under MCL 15.362 of the WPA, the plaintiff must

show that “(1) he or she was engaged in protected activity as defined by the act, (2) he or she

suffered an adverse employment action, and (3) a causal connection exists between the protected

activity and the adverse employment action.” Whitman, 493 Mich at 313. Plaintiff’s report of

potential criminal activity to federal authorities constitutes protected activity under the WPA, and

satisfies the first requirement. However, plaintiff was not terminated, threatened with termination,

or threatened with any other action, and he received his full pay and benefits while on leave. He

returned to work in the same position with the same pay and benefits in May 2020. For an action

by an employer to constitute an “adverse employment action” under the WPA, the plaintiff must

demonstrate he was discharged, threatened, or otherwise discriminated against. MCL 15.362.

Being placed on administrative leave with pay does not constitute an adverse employment action

under the statute, absent any adverse effect on the compensation, terms, conditions, location, or

privileges of employment. Plaintiff claims his work conditions were altered when he returned to

work in May 2020. He claims that his old work computer and phone were not returned, his new

computer lacked certain programs and access to certain drives, he was told by Dunn that he could

not shut his office door, and his township credit card was never returned to him. Dunn also

requested that plaintiff have another employee present during any meetings. However, when

plaintiff returned to work, he received a new computer and a newer version iPhone, and the

programs and drives were eventually installed. He was not given a credit card, but instead given

an account number to use. The fact that Dunn requested that another employee be present in

plaintiff’s meetings does not demonstrate that he was discriminated against in his conditions or

privileges of employment. MCL 15.362. Thus, plaintiff fails to establish how any alleged changes

in the conditions of his employment upon his return to work in May 2020, constituted adverse

employment actions.

Similarly, plaintiff cannot establish that the Board’s vote in February 2020, to determine

whether just cause existed to terminate his employment, constituted an adverse employment action

by Dunn because she recused herself and did not vote, and the vote that did occur did not result in

his termination. Plaintiff also cannot establish that Dunn’s motion in May 2020, for the Board to

reconsider termination, constituted adverse employment action because it did not result in a vote

or any further action. Plaintiff has not demonstrated that he was threatened or otherwise

-11-

discriminated against in his compensation, terms, conditions, location, or privileges of

employment by the February 2020 vote or Dunn’s May 2020 motion. 5 Id.; MCL 15.362.

The only adverse employment action the trial court found to be committed by Dunn was

her “development, use, and review of the anonymous performance evaluation questionnaires that

were sent to union members and managers who were allegedly antagonistic towards [plaintiff].”

This led to the hiring of an “alleged pro-union attorney” to review the evaluations and make

recommendations to the Board on whether just cause existed for termination, which the trial court

deemed not to be an adverse action. Plaintiff cannot establish a causal link between his protected

activity, making the report to federal authorities, and the adverse employment action, the

performance evaluations. Plaintiff concedes a lack of a causal relationship between his January 22,

2020 memorandum and any alleged adverse employment action taken before that date. Dunn sent

out the performance evaluations on January 10, 2020, asking that they be returned by January 17,

2020. Dunn, Pozzi, and Goodhue reviewed the evaluations sometime after January 17, 2020, but

before plaintiff sent his memorandum on January 22, 2020, and plaintiff ultimately conceded that

Goodhue reviewed the negative results of his evaluations with him before he sent his

memorandum. Thus, there is no causal connection between the performance evaluations and

plaintiff’s protected activity because Dunn’s development, use, and review of the evaluations

occurred before plaintiff sent out his memorandum.

The trial court determined that Dunn’s retention of attorney Yeotis to review the

evaluations did not constitute an “adverse employment action” under the WPA. We agree.

Plaintiff cannot establish a causal connection between his protected activity and the hiring of

Yeotis. Although Dunn and Pozzi retained Yeotis after plaintiff sent out his memorandum, there

is nothing more than a temporal relationship between the two occurrences, and this is insufficient

to establish the third element of plaintiff’s prima facie case. See West, 469 Mich at 186. Dunn

and Pozzi retained Yeotis upon the recommendation of attorney Meihn, the interim general counsel

retained while plaintiff was on administrative leave, based on the negative results of plaintiff’s

performance evaluations. They hired Yeotis to review the evaluations, and provide a

recommendation to the Board whether just cause existed to terminate plaintiff. Thus, plaintiff has

failed to establish causation between his memorandum and the hiring of Yeotis.

Because plaintiff has failed to establish a prima facie case against Dunn under the WPA,

there is no presumption of retaliation, no need for Dunn to offer legitimate reasons for her actions,

and no reason to discuss plaintiff’s argument that any reason offered by Dunn is mere pretext.

McNeill-Marks, 316 Mich App at 17-18.

C. POZZI

Lastly, the trial court did not err by granting Pozzi summary disposition of plaintiff’s WPA

claim.

5

To the extent that defendant argues that Pozzi’s participation in the February 2020 vote or

seconding Dunn’s May 2020 motion constitute adverse employment action, his argument fails for

the same reasoning.

-12-

As an initial matter, the trial court properly granted Pozzi summary disposition based on

its conclusion that she was not an “employer” or an “agent of an employer” for purposes of the

WPA. MCL 15.361(b) defines “employer” as “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.” The

Township was the “employer” of plaintiff under his employment agreement; Pozzi merely signed

it on the Township’s behalf in her capacity as clerk. It was also signed by Dunn in her capacity as

supervisor. This Court has used the “economic-reality” test to determine whether an employer-

employee relationship exists under the WPA:

The economic reality test looks to the totality of the circumstances

surrounding the work performed. Relevant factors to consider under the test

include: (1) control of a worker’s duties; (2) payment of wages; (3) right to hire,

fire, and discipline; and (4) performance of the duties as an integral part of the

employer’s business toward the accomplishment of a common goal. All the factors

are viewed as a whole and no single factor is controlling. [Chilingirian v City of

Fraser, 194 Mich App 65, 69-70; 486 NW2d 347 (1992), remanded on other

grounds 442 Mich 874 (1993) (citations omitted).]

Dunn supervised plaintiff’s work duties, as provided in his employment agreement. There was no

indication that Pozzi had any control over the payment of plaintiff’s wages, nor did Pozzi have the

authority to hire, fire, or discipline plaintiff; these decisions were left to the discretion of the Board.

Plaintiff argues Pozzi was an “agent of an employer” under the statute. MCL 15.361(b).

Claims under the WPA are often compared by analogy to claims under the Elliott-Larsen Civil

Rights Act (ELCRA), MCL 37.2101 et seq. 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. at 10 (alteration in original). Here, the trial court

correctly concluded that under this framework, Pozzi is not an agent of an employer for purposes

of the WPA because she had no general supervisory power or authority over plaintiff. His day-to-

day job duties were supervised by Dunn, as the township supervisor. Therefore, summary

disposition in favor of Pozzi on plaintiff’s WPA claim against her was proper on this basis.

IV. PUBLIC POLICY

Plaintiff asserts the trial court erred in finding the WPA provided the exclusive remedy for

his retaliation claims. Plaintiff argued that his termination in retaliation for reporting violations of

the Standards of Conduct for Public Officers and Employees Act violated public policy. Plaintiff

also argued he was retaliated against for filing his original WPA claim, in contravention of public

policy. We disagree.

The Township first moved for partial summary disposition under MCR 2.116(C)(8) and

(10). The trial court’s opinion and order indicates that it granted the Township summary

disposition of plaintiff’s claims for violation of public policy and retaliation in violation of the

WPA and public policy under MCR 2.116(C)(8). This Court reviews a trial court’s decision to

-13-

grant or deny summary disposition de novo. Glasker-Davis, 333 Mich App at 229. A motion for

summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim. El-Khalil v

Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary disposition

under MCR 2.116(C)(8) is warranted only when the claim is so unenforceable as a matter of law

that no factual development could justify recovery. Id. at 160. When reviewing a motion brought

under MCR 2.116(C)(8), this Court must consider the motion based on the pleadings alone, and

accept all factual allegations as true. Id.

“The WPA provides the exclusive remedy for [] retaliatory discharge and consequently

preempts common-law public-policy claims arising from the same activity.” Anzaldua v Neogen

Corp, 292 Mich App 626, 631; 808 NW2d 804 (2011). In Janetsky v Saginaw Co, 510 Mich 1104,

1104 & n 1 (2022) (Janetsky I), the Supreme Court ruled that this Court erred by concluding that

the WPA provided the exclusive remedy for the plaintiff’s public-policy claim, and remanded for

a determination whether this claim was legally and factually supported. The Supreme Court

determined that the WPA did not provide the exclusive remedy for the plaintiff’s public-policy

claim because that claim was “factually distinct” from her WPA claim, and the factual allegations

did not “fall within the scope of conduct covered by the WPA.” Id. at 1105. The Court concluded:

[The] [p]laintiff’s WPA claim is based on her reports to her supervisor of actual or

suspected violations of the law in the entering of a plea and sentencing agreement.

By contrast, [the] plaintiff’s public-policy claim is based on her alleged refusal to

violate the law—i.e., her attempt to set aside that plea and sentencing agreement.

Further, the WPA governs only reports of violations or suspected violations of the

law, and [the] plaintiff’s public-policy claim is not premised on such conduct. [Id.

at 1105-1106].

This case is distinguishable from Janetsky because plaintiff’s public-policy claims are not

“factually distinct” from his WPA claim. Id. at 1105. In plaintiff’s second amended complaint,

he alleged “violation of Michigan public policy” in Count II, and “retaliation in violation of

Michigan’s [WPA]/public policy” in Count IV. Both counts referenced and relied on the same

general allegations, which plaintiff also relied on for his WPA claim in Count I. Although Count

IV was amended to include allegations related to activity that occurred after plaintiff filed his

original complaint, plaintiff relied on the same general factual allegations for all three counts. In

Count II, he alleged he was retaliated against for making his report to federal authorities. He makes

the same allegations under Count IV. This was the underlying basis for his WPA claim in Count

I. Based on the pleadings alone, it is clear that plaintiff’s public-policy claims arise from the same

activity as his WPA claim, namely, his report of suspected criminal activity to federal authorities

and defendants’ alleged retaliatory acts in response. Because the WPA provides the exclusive

remedy for alleged retaliatory discharge, summary disposition of plaintiff’s public policy-based

claims was proper under MCR 2.116(C)(8). Anzaldua, 292 Mich App at 631.

Plaintiff also argues that his public-policy claims should have been reinstated when the

trial court granted defendants summary disposition of his WPA claims. The trial court’s opinion

and order provided, “[s]hould [p]laintiff’s WPA claim prove not applicable, the [c]ourt will

entertain a motion to reinstate these claims.” But the trial court did not find that plaintiff’s WPA

claims were “not applicable”; rather, it ultimately concluded that the WPA did apply, but plaintiff’s

-14-

claims failed on the merits. Moreover, plaintiff never moved to reinstate these claims in the trial

court.

VI. CONCLUSION

The trial court did not err in granting defendants summary disposition of plaintiff’s breach-

of-contract, WPA, and public policy-based claims. The trial court orders granting these motions

and denying plaintiff’s motion under MCR 2.604(A) are therefore affirmed.

Affirmed.

/s/ Michael F. Gadola

/s/ Michelle M. Rick

/s/ Christopher P. Yates

-15-