McNEILL-MARKS v. MIDMICHIGAN MEDICAL CENTER-GRATIOT, 316 Mich. App. 1

Background

Tammy McNeil-Marks, an MMCG clinical manager, had an existing ex parte personal protection order (PPO) against Sandi Fields (plaintiff’s cousin’s mother) because Fields had repeatedly threatened plaintiff and her children.
On December 27, 2013 a new PPO extending protections (including prohibition on “stalking” as defined by MCL 750.411h/i) was entered ex parte and became immediately enforceable through 12/31/2014.
On January 13, 2014 plaintiff encountered Fields in a MMCG hallway; Fields, being transported in a wheelchair, greeted plaintiff aloud. Plaintiff was upset, called her supervisor and then her attorney (Richard Gay) to report the contact.
That same evening Fields (while a patient at MMCG) was served with the PPO by a process server unrelated to plaintiff; an audit later showed plaintiff did not access Fields’s medical records.
MMCG investigated following a HIPAA complaint, concluded plaintiff disclosed Fields’s patient status to her attorney and violated HIPAA, and terminated plaintiff on February 14, 2014 citing a severe breach of confidentiality.
Plaintiff sued alleging retaliation under the Whistleblowers’ Protection Act (WPA) and a common-law public-policy wrongful discharge claim; the trial court granted MMCG summary disposition. The Court of Appeals affirmed dismissal of the public-policy claim, reversed summary dismissal of the WPA claim, and remanded.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiff’s call to her attorney constituted a report to a “public body” under the WPA	Gay, as a licensed attorney and member of the State Bar of Michigan, is a member of a public body created/regulated by state authority, so the call was a WPA-protected report	The call to a private attorney is not a communication to a public body and thus is not WPA-protected	Held for plaintiff: Gay qualifies as a member of a “public body” under MCL 15.361(d)(iv); the call was protected activity
Whether Fields’s hallway contact violated the PPO / whether plaintiff reasonably believed a violation occurred	The encounter—viewed with prior unconsented contacts and threats—could reasonably be viewed as stalking/unconsented contact under MCL 750.411h, so plaintiff acted in good faith	The hallway encounter was accidental and did not meet the statutory stalking elements; plaintiff couldn’t reasonably suspect a PPO violation	Held for plaintiff on fact question: evidence could support that Fields’s contact (in context) was willful/unconsented and plaintiff could reasonably believe a violation occurred
Whether MMCG’s stated reason for firing (HIPAA/privacy breach) was pretext for retaliation under the WPA	The discharge form cited plaintiff’s call to Gay; that direct evidence supports a causal nexus and pretext for termination	MMCG had a legitimate, nondiscriminatory reason (suspected HIPAA violation) for termination	Held for plaintiff as to pretext issue: direct evidence (disciplinary form) creates a triable issue that protected activity was a motivating factor despite MMCG’s asserted HIPAA concern
Whether the WPA preempts plaintiff’s common-law public-policy wrongful discharge claim	Plaintiff argued refusal to conceal a violation is distinct from reporting and thus supports a public-policy claim separate from the WPA	MMCG argued WPA provides exclusive remedy for retaliation based on reporting or being about to report violations	Held for MMCG: public-policy claim is preempted because it arises from the same activity protected by the WPA

Key Cases Cited

DeFrain v. State Farm Mut. Auto. Ins. Co., 491 Mich 359 (2012) (standard of review for summary disposition)
LaFontaine Saline, Inc. v. Chrysler Group, LLC, 496 Mich 26 (2014) (summary disposition under MCR 2.116(C)(10) — record viewed in light most favorable to nonmoving party)
Chandler v. Dowell Schlumberger Inc., 456 Mich 395 (1998) (definitions of protected activity under the WPA)
Truel v. City of Dearborn, 291 Mich App 125 (2010) (WPA protects good-faith reports or about-to-report activity)
Debano-Griffin v. Lake Co., 493 Mich 167 (2012) (burdens and proof for retaliation claims; motivating-factor standard)
Hazle v. Ford Motor Co., 464 Mich 456 (2001) (pretext and motivating-factor analysis)
Hoffenblum v. Hoffenblum, 308 Mich App 102 (2014) (statutory construction principles)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework noted though direct evidence can obviate its use)