891 N.W.2d 528
Mich. Ct. App.2016Background
- 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)