Marsha Garcia v. Rose Laskowski

STATE OF MICHIGAN

COURT OF APPEALS

MARSHA GARCIA, UNPUBLISHED

October 15, 2015

Plaintiff-Appellee,

v No. 322185

Tuscola Circuit Court

ROSE LASKOWSKI, CHRISTOPHER LC No. 13-027507-NO

KWASNESKI, SAMANTHA FACKLER,

EILEEN UNRUH, and DAVID UNDERWOOD,

Defendants-Appellants.

MARSHA GARCIA,

Plaintiff-Appellee,

v No. 322189

Tuscola Circuit Court

LAURA WEILER, LC No. 14-028117-NO

Defendant-Appellant.

Before: BORRELLO, P.J., and JANSEN and OWENS, JJ.

PER CURIAM.

In these consolidated cases, defendants appeal as of right the circuit court’s May 21, 2014

order denying their motion for summary disposition under MCR 2.116(C)(7) (governmental

immunity).1 For the reasons set forth in this opinion, we affirm.

I. FACTUAL BACKGROUND

1

The trial court also denied defendant’s motion under MCR 2.116(C)(10) (no genuine issue of

material fact). However, only governmental immunity is at issue in this appeal.

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In January of 2011, plaintiff became employed at the State of Michigan Department of

Health and Human Services (DHHS) Caro Center, a state hospital for adults with chronic and

severe mental illness, in a position titled RN Manager 1 or RN-1. Defendants are all managerial

or supervisory employees at the Caro Center. An RN-1 is responsible for providing care to

patients and doing some supervision of lower level employees. As a provisional employee,

plaintiff received evaluations after three, six, and twelve months on the job. The evaluations

allowed supervisors to give employees scores of “unsatisfactory,” “meets expectations,” and

“high performing.” On her three and six month evaluations, plaintiff received a “meets

expectations” rating for both the overall score and for various sub-categories. The evaluating

supervisor testified that plaintiff’s performance was similar to other new nurses, that she never

expressed any concern with plaintiff, and that while she has given “high performing” scores to

new nurses, a “meets expectations” is the more common score given. However, plaintiff

received numerous e-mails from defendant Eileen Unruh, a supervisor, regarding plaintiff’s

documentation errors in various reports and charts. Nonetheless, a co-worker attested that such

e-mails are common in the facility, are meant to provide guidance not criticism, and that the

nurses generally refer to such e-mails as “nasty grams” due to their frequency and nature.

At a deposition, plaintiff testified that on August 13, 2011 she was helping a patient and

tried to prevent the patient from falling. Plaintiff stated that she went down with the patient and

was injured, requiring her to go to the hospital in Saginaw. Plaintiff testified that she returned to

work on limited duty on August 25, 2011. Plaintiff also stated that when she returned to work,

Human Resources gave her a list of the tasks she could and could not perform. She then filed a

worker’s compensation claim and gave the paperwork for the claim to Human Resources. The

Caro Center’s director of human resources, defendant Christopher Kwasneski, testified that all

workers compensation claims would go across his desk for review. Plaintiff claimed that upon

returning to limited duty, defendant Samantha Fackler, a supervisor, told plaintiff that she would

not pay plaintiff to answer telephones. Another supervisor testified that plaintiff made

documentation errors while on limited duty.

Plaintiff returned to active duty on November 16, 2011, at which point she was assigned

a “preceptor,” defendant Laura Weiler. Testimony varied regarding what exactly a “preceptor”

was and specifically what Weiler’s role entailed. Plaintiff claimed that her role was to assist

plaintiff. The Caro Center’s director, defendant Rose Laskowski, testified that the preceptor’s

role was also to evaluate plaintiff. Plaintiff claimed that Weiler submitted derogatory

evaluations about her work without speaking to her about the concerns first. Fackler also spoke

with plaintiff after plaintiff was late for work on several occasions and documented this

conversation. Plaintiff also received e-mails from Unruh similar to the ones she received before

her injury.

Plaintiff was summoned to a disciplinary conference on December 15, 2011 with Fackler

and Kwasneski. She was given her 12-month evaluation and was told that she was being

terminated. The evaluation was completed by Fackler and gave plaintiff an overall rating of

“unsatisfactory.” Additionally, most all of the sub-categories contained “unsatisfactory” ratings

and the evaluation was filled with numerous comments regarding deficiencies in plaintiff’s work,

most all of which were related to documentation errors. Kwasneski stated that it is not

uncommon for employees to get “meets expectations” marks at the three and six month

evaluations in order to give them a chance to get acclimated to the facility, and then get

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“unsatisfactory” marks at the 12-month mark due to a failure to progress. However, Laskowski

stated that she would find it unusual for an employee to be terminated after receiving “meets

expectations” marks at the three and six month evaluations. Laskowski also stated that no

disciplinary action was ever taken against plaintiff prior to her being terminated.

Plaintiff commenced this lawsuit alleging that she was wrongfully terminated from her

employment in retaliation for filing a claim under the Workers Disability Compensation Act,

(WDCA) MCL 418.101 et seq.2 Defendants ultimately moved for summary disposition arguing,

in part, that plaintiff’s claim was barred by governmental immunity. The trial court denied

defendants’ motion, finding that there was an issue of fact regarding whether defendants acted in

good faith, a necessary element for qualified governmental immunity to apply. The trial court

specifically cited evidence of the timing of the termination, the lack of formal discipline before

the termination, and comments made by Fackler that she would not pay plaintiff for answering

telephones. The court entered a written order on May 21, 2014, denying defendants’ motions in

both cases and defendants appeal as of right.3

II. STANDARD OF REVIEW

We review a trial court’s ruling on a motion for summary disposition de novo. Maiden v

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition is proper under

MCR 2.116(C)(7) where a party enjoys immunity under the law. “In determining whether

summary disposition under MCR 2.116(C)(7) is appropriate, a court considers all documentary

evidence submitted by the parties, accepting as true the contents of the complaint unless

affidavits or other appropriate documents specifically contradict them.” Blue Harvest, Inc v

Dep’t of Trans, 288 Mich App 267, 271; 792 NW2d 798 (2010). “If the facts are not in dispute

and reasonable minds could not differ concerning the legal effect of those facts, whether a claim

is barred by immunity is a question for the court to decide as a matter of law.” Id. (quotation

marks and citations omitted).

III. ANALYSIS

i. RETALIATORY DISCHARGE UNDER THE WDCA

2

Laura Weiler was listed as a defendant in the initial complaint and summons, but she was not

served and the summons expired resulting in the case against her being dismissed without

prejudice. Plaintiff then filed a separate complaint against Weiler, and a stipulated order was

entered consolidating both causes of action in the trial court. Both actions concern the same set

of operative facts and allegations.

3

Defendants filed separate claims of appeals in both lower court dockets and this Court

consolidated the appeals. Garcia v Laskowski, unpublished order of the Court of Appeals, June

26, 2014 (Docket No. 322185); Garcia v Weiler, unpublished order of the Court of Appeals,

entered June 26, 2014 (Docket No. 322189).

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The primary purpose of the WDCA is to “promptly deliver benefits to employees injured

in the scope of their employment.” Dunbar v Mental Health Dep’t, 197 Mich App 1, 6, 495

NW2d 152 (1992). “Initially, the Act did not contain a retaliatory-discharge cause of action . . .

[but] [i]n 1981 PA 200, the Legislature codified a cause of action for retaliatory discharge by

amending the WDCA and adding MCL 418.301(11), which was later reclassified as MCL

418.301(13).” Cuddington v United Health Services, Inc, 298 Mich App 264, 272; 826 NW2d

519 (2012) (quotation marks and citations omitted). MCL 418.301(13) provides as follows:

A person shall not discharge an employee or in any manner discriminate

against an employee because the employee filed a complaint or instituted or

caused to be instituted a proceeding under this act or because of the exercise by

the employee on behalf of himself or herself or others of a right afforded by this

act.

“A cause of action seeking damages from an employer who violates the worker’s

compensation act . . . sounds in tort. . . .” Phillips v Butterball Farms Co, 448 Mich 239, 248-

249; 531 NW2d 144 (1995).

ii. GOVERNMENTAL IMMUNITY

For lower-level governmental employees, officials and agents such as the individuals

named as defendants in this suit,4 the test set forth in Ross v Consumers Power Co, 420 Mich

467; 363 NW2d 641 (1984), governs whether the employee has qualified immunity under the

Government Tort Liability Act (GTLA), MCL 691.1401 et seq. Odom v Wayne County, 482

Mich 459, 470; 760 NW2d 217 (2008). Under the Ross test, a governmental employee is entitled

to immunity where he or she has shown the following:

(a) The acts were undertaken during the course of employment and the

employee was acting, or reasonably believed that he was acting, within the scope

of his authority,

(b) the acts were undertaken in good faith, or were not undertaken with

malice, and

(c) the acts were discretionary, as opposed to ministerial. [Odom, 482

Mich at 480, citing Ross, 420 Mich at 467.]

iii. APPLICATION

The only Ross factor at issue in this appeal is whether there was an issue of fact regarding

whether defendants acted in good faith or without malice in terminating plaintiff. A lack of good

4

None of the named defendants argue that they are a “highest appointive executive official” of a

governmental entity entitled to absolute immunity under MCL 691.1407(5) and they do not

dispute that Ross governs in this case.

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faith exists when a government employee acts with “malicious intent.” Veldman v Grand

Rapids, 275 Mich 100, 113; 265 NW 790 (1936). A government employee does not act in good

faith “when the governmental employee acts maliciously or with a wanton or reckless disregard

of the rights of another.” Odom, 482 Mich at 474 (emphasis in original). “[W]illful and wanton

misconduct is made out only if the conduct alleged shows an intent to harm or, if not that, such

indifference to whether harm will result as to be the equivalent of a willingness that it does.”

Burnett v Adrian, 414 Mich 448, 455; 326 NW2d 810 (1982).

In this case, whether defendants were entitled to governmental immunity turns on

whether there was a genuine issue of material fact to support plaintiff’s underlying retaliatory

discharge claim. In other words, because wrongfully terminating an employee in retaliation for

exercising her rights under the WDCA cannot be done in good faith or without malice, if there is

an issue of fact regarding the retaliation claim, there is also an issue of fact regarding whether

defendants are entitled to governmental immunity under the Ross factors.

To establish a prima facie WDCA retaliation suit, plaintiff was required to present

evidence that: (1) she asserted a right under the WDCA—i.e. in this case, the right to claim

worker’s compensation, (2) that defendants knew that plaintiff asserted a protected right, (3) that

defendants took an employment action adverse to plaintiff, and (4) that the adverse employment

action and plaintiff’s assertion or exercise of a right afforded under the WDCA were causally

connected. Cuddington, 298 Mich App at 275.

With respect to the last element, causation, a plaintiff may either present direct or

circumstantial evidence in support of her claim. Id. at 275-273. In the context of employment

discrimination, “direct evidence” has been defined as “evidence which, if believed, requires the

conclusion that unlawful discrimination was at least a motivating factor in the employer’s

actions.” Hazle v Ford Motor Co, 464 Mich 456, 462; 628 NW2d 515 (2001). Stated

differently, “[i]n the retaliation context, direct evidence of retaliation establishes without resort to

an inference that an employer’s decision to take an adverse employment action was at least in

part retaliatory.” Cuddington, 298 Mich App at 276.

Because “[r]arely will an employer openly admit having fired a worker in retaliation for

exercising a right of employment,” a plaintiff may present circumstantial evidence to establish a

“rebuttable prima facie case of retaliation” and shift the burden “to the defendant to articulate a

legitimate, nondiscriminatory reason for its action.” Id. at 276-277. “A plaintiff can establish

that the employer’s proffered reasons for the adverse employment action qualify as pretextual by

demonstrating that the reasons (1) had no basis in fact, (2) were not the actual factors motivating

the decision, or (3) were insufficient to justify the decision.” Id. at 277. A plaintiff must present

evidence from which a fact-finder could conclude that retaliation was a motivating factor. Id.

Mere temporal proximity between the protected activity and adverse employment action is

insufficient. West v Gen Motors Co, 469 Mich 177, 186; 665 NW2d 468 (2003).

In this case, although there was no direct evidence of retaliation, there was evidence that

would allow a trier of fact to find that defendants knew that plaintiff suffered a work-related

injury, that she sought worker’s compensation benefits, and that her request for worker’s

compensation benefits was a motivating factor in the termination decision. Cuddington, 298

Mich App at 277. Plaintiff proffered the affidavit of a co-worker who testified that the e-mails

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plaintiff received, which defendants argue show her poor track record, were common place at the

Caro Center. Plaintiff submitted performance evaluations from before her injury that showed

satisfactory progress and no complaints. These evaluations showed that, at six-months, plaintiff

was a satisfactory employee, yet, less than six months later and after her injury, defendants

viewed her performance as so poor that it warranted termination. Plaintiff also submitted

depositional testimony establishing that the supervisor who filled out the first two evaluations

considered her progress equal to that of other new RNs and that the Caro Center director

considered it unusual for an employee to be fired after receiving satisfactory ratings at the three

and six month intervals. Plaintiff also provided testimony that Weiler wrote her up without her

knowledge and did not discuss the issues with her before doing so. In addition, plaintiff testified

that when she returned to restricted work following her injury, one of her supervisors stated that

she was not going pay her to sit and answer telephones. This evidence is not direct evidence that

plaintiff was terminated because she filed for worker’s compensation benefits, but it does support

an inference to that effect. Reasonable minds could conclude that plaintiff’s termination was

motivated in part because she sought worker’s compensation benefits. Id.

In arguing that the trial court erred in denying their motion for summary disposition,

defendants cite evidence to show that it was plaintiff’s poor performance that led to her

termination. However, at the summary disposition stage, issues involving the weight of the

evidence and the credibility of witnesses are to be left to the trier of fact. See e.g. Skinner v

Square D Co, 445 Mich. 153, 161; 516 NW2d 475 (1994) (a trial court may not make factual

findings or weigh credibility in deciding a motion for summary disposition). Here, plaintiff

presented a sufficient amount of evidence that a trier of fact needed to weigh against the

evidence proffered by defendants. Indeed, if a trier of fact were to believe plaintiff’s version of

the facts, including her testimony that her supervisor did not want to pay her to sit and do office

work, the trier of fact could conclude that defendants’ actions in terminating plaintiff were

motivated at least in part by a retaliatory animus. Cuddington, 298 Mich App at 277. Because a

finding that retaliatory animus was a motivation for terminating plaintiff’s employment would

constitute an absence of good faith on the part of defendants, defendants would not be entitled to

qualified governmental immunity. Alternatively, a fact-finder could conclude that, based on

defendants’ evidence, plaintiff was terminated for legitimate deficiencies in her performance.

Such a finding would support that defendants acted in good faith and were entitled to qualified

governmental immunity.

Defendants’ argument that no factual dispute exists, assumes that plaintiff would be

required to prove her case with direct evidence of a retaliatory animus or by direct evidence of an

absence of good faith. However, as previously noted, plaintiff is not required to proffer direct

evidence of retaliatory animus because “[r]arely will an employer openly admit having fired a

worker in retaliation for exercising a right of employment.” Cuddington, 298 Mich App 276.

Rather, the circumstantial evidence viewed in a light most favorable to plaintiff, leaves open a

genuine issue of material fact regarding whether defendants acted with a retaliatory animus and

an absence of good faith or with malice.

IV. CONCLUSION

In sum, because there remained issues of fact as to whether defendants terminated

plaintiff with retaliatory animus in violation of the WDCA, there remained issues of fact as to

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whether defendants acted in good faith or without malice and thereby entitled to qualified

governmental immunity. The trial court did not err in denying defendants’ motion for summary

disposition.

Affirmed. Plaintiff having prevailed, may tax costs. MCR 7.219(A). Jurisdiction is not

retained.

/s/ Stephen L. Borrello

/s/ Kathleen Jansen

/s/ Donald S. Owens

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