Whistleblower Cases

McNEILL-MARKS v MIDMICHIGAN MEDICAL CENTER-GRATIOT Docket No. 326606. Submitted June 8, 2016, at Lansing. Decided June 16, 2016, at 9:00 a.m. Leave to appeal sought. Tammy McNeill-Marks brought an action in the Gratiot Circuit Court against MidMichigan Medical Center-Gratiot (MMCG), alleging that MMCG’s decision to terminate her employment violated both the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and Michigan public policy because MMCG terminated her for either reporting a violation of a personal protection order (PPO) to her attorney or for being about to report that violation to the circuit court. Plaintiff, a clinical manager at MMCG, had adopted three children. The children’s grandmother, Marcia Fields, had threatened to kill plaintiff, plaintiffs adopted children, and plaintiffs biological children during the adoption process. Plaintiff sought and was granted a series of PPOs against Fields. The PPO at issue ordered Fields, among other things, to refrain from stalking plaintiff as defined under MCL 750.411h and MCL 750.411Í. Plaintiff subsequently encountered Fields in a hallway at MMCG. Fields was in a wheelchair and said, “Hello, Tammy,” in a sing-song vocal tone that plaintiff described as “the cat that just ate the canary,” indicating to plaintiff that Fields knew she had “gotten away with something she’s not supposed to do.” Plaintiff informed her supervisor about the situation and then called her attorney to tell him that Fields had appeared at MMCG; however, at no time did plaintiff tell her attorney that Fields was a patient at MMCG. Later that evening, while Fields was still a patient at MMCG, a process server from the attorney’s law office served Fields with the PPO in her hospital room. Fields and her family reported the incident to MMCG as a suspected violation of the Health Insurance Portability and Accountability Act (HIPAA), 29 USC 1181 et seq.; 42 USC 300gg; 42 USC 1320d et seq. Plaintiff moved to have Fields held in contempt for violating the PPO, but plaintiff did not include her encounter with Fields in the hospital as an alleged violation. MMCG began an investigation into Fields’s HIPAA complaint, and plaintiff alleged that MMCG’s privacy officer threatened that plaintiff would be terminated if plaintiff testified regarding her interaction with Fields at MMCG at the hearing on plaintiffs motion to hold Fields in contempt for violating the PPO. Following the investigation, MMCG concluded that plaintiff violated both HIPAA and MMCG’s privacy policy, terminated plaintiffs employment, and gave plaintiff a “Corrective Action and Disciplinary Form” that cited plaintiffs telephone conversation with her attorney as a violation of HIPAA policy. Plaintiff then brought this action. MMCG moved for summary disposition, arguing that plaintiff had failed to establish a prima facie case under the WPA because plaintiff never reported the alleged violation to a “public body” as defined under the WPA and because plaintiff could not have reasonably suspected that Fields’s conduct violated the stalking prohibition in the PPO. Additionally, MMCG argued that the WPA claim preempted the public policy claim. The court, Randy L. Tahvonen, J., granted MMCG’s motion, concluding that plaintiffs telephone conversation with her attorney was not a communication to a public body, that Fields’s conduct did not violate the PPO, and that the hospital did not attempt to conceal a crime. Plaintiff appealed. The Court of Appeals held: 1. MCL 600.2950(l)(j) prohibits stalking, which MCL 750.411h(l)(d) defines as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested. MCL 750.411h(l)(e) defines unconsented contact as any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued. MCL 750.411h(l)(d) requires a willful course of conduct; however, even if Fields’s initial encounter with plaintiff in the hallway at MMCG was not willful, and was instead accidental, Fields’s subsequent verbal communication with plaintiff constituted willful, unconsented contact under MCL 750.411h(l)(e). Even if Fields could not have planned her contact with plaintiff or avoided such contact, after she saw plaintiff, Fields made a deliberate choice to speak to her, and such deliberation made the communication willful, particularly in light of the tone in which Fields spoke—a tone indicating that she knew she had “gotten away with something she’s not supposed to do.” Fields’s conduct, in concert with her prior unconsented contacts with plaintiff, qualified as “stalking” in violation of the PPO. 2. MCL 15.362 provides, in relevant part, that an employer shall not discharge, threaten, or otherwise discriminate against 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 or regulation or rule promulgated pursuant to the 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. To establish a prima facie case under MCL 15.362, a plaintiff must show that (1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. “Protected activity” 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. Under MCL 15.363(4), an employee asserting that he or she was “about to report” a violation must support that claim with 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 to a public body. Reporting or being about to report a violation or a suspected violation to a public body is protected if the report is or is about to be made in good faith. Under MCL 15.361(d)(¿u), a “public body” includes any body that is created by state or local authority or that is primarily funded by or through state or local authority, or any member or employee of that body. Under MCL 600.904, the Supreme Court is empowered to provide for the organization, government, and membership of the State Bar of Michigan (SBM) and to adopt rules and regulations concerning the conduct and activities of the SBM and its members, which includes the schedule of membership dues. In this case, the trial court erred by concluding that, because Fields’s conduct did not violate the PPO, it was immaterial whether plaintiff made a report or was about to make a report regarding Fields’s conduct to a public body before she was terminated. Even assuming that Fields’s conduct did not actually violate the PPO, plaintiff was still afforded the protection of the WPA so long as she, in good faith, reported, or was about to report, Fields’s conduct to a public body as a suspected violation of the PPO. There was no evidence that plaintiff acted in bad faith, i.e., that she did not actually believe that Fields’s conduct violated the PPO. If plaintiff reported such conduct to a public body, or was about to do so, she was engaged in a protected activity under the WPA. Furthermore, it was undisputed that plaintiffs attorney was a licensed Michigan attorney and a member in good standing of the SBM when plaintiff called him and reported her contact with Fields. The attorney’s licensure and active membership in the SBM were both mandatory. Under the plain language of the WPA, specifically MCL 15.361(d)(¿u), plaintiff’s attorney qualified as a member of a public body for WPA purposes. As a practicing attorney and member of the SBM, plaintiffs attorney was a member of a body “created by” state authority, which, through the regulation of the Supreme Court, is also “primarily funded by or through” state authority. The trial court erred by holding that plaintiffs attorney was not a member of a public body for WPA purposes, and the trial court further erred by concluding that a report to a public body is a necessary prerequisite to establish a prima facie case under the WPA because a report to a public body is only one of three types of protected activity under the WPA. Plaintiff established a prima facie case under the WPA because (1) her report to her attorney was a report to a member of a public body and therefore a protected activity under the WPA, (2) plaintiff was discharged, and (3) plaintiff presented direct evidence of the causal connection between the discharge and the report to her attorney: the “Corrective Action and Disciplinary Form” that explicitly cited plaintiffs telephone conversation with her attorney as a factor that motivated MMCG’s discharge decision. Plaintiffs direct evidence was sufficient to survive summary disposition despite the legitimate reason that MMCG offered for its action—that it suspected plaintiff of violating HIPAA—because a reasonable fact-finder could still conclude that plaintiffs protected activity was a motivating factor for MMCG’s decision. The trial court erred by granting summary disposition in favor of MMCG. 3. When a plaintiff alleges discharge in retaliation for engaging in activity protected by the WPA, the WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public policy claims arising from the same activity. Plaintiffs public policy claim arose out of the same activity as the WPA claim for preemption purposes. Plaintiffs refusal to conceal Fields’s violation of the PPO was effectuated by plaintiffs report to her attorney, and there was no record evidence that plaintiff was instructed to conceal such activity before plaintiffs telephone conversation with her attorney. There was no logical distinction between the refusal to conceal and the report by which that refusal manifested itself. Summary disposition of the public policy claim was proper because the WPA claim preempted the public policy claim. Trial court ruling regarding plaintiffs public policy claim affirmed; summary dismissal of the WPA claim reversed; case remanded to the trial court for further proceedings. 1. Michigan Penal Code - Aggravated Stalking - Words and Phrases - “Unconsented Contact.” MCL 600.2950(l)(j) prohibits stalking, which MCL 750.411h(l)(d) defines as a willful course of conduct involving repeated or continuing harassment of another individual that would cause a reasonable person to feel terrorized, frightened, intimidated, threatened, harassed, or molested and that actually causes the victim to feel terrorized, frightened, intimidated, threatened, harassed, or molested; MCL 750.411h(l)(e) defines unconsented contact as any contact with another individual that is initiated or continued without that individual’s consent or in disregard of that individual’s expressed desire that the contact be avoided or discontinued; even if an initial encounter was not willful, a person’s subsequent verbal communication may constitute willful, unconsented contact under MCL 750.411h(l)(e). 2. Actions — Whistleblowers’ Protection Act — Words and Phrases — “Public Body.” MCL 15.362 provides that an employer shall not discharge, threaten, or otherwise discriminate against 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 or regulation or rule promulgated pursuant to the 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; under MCL 15.361(d)(¿u), a public body includes any 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; a licensed Michigan attorney with active membership in the State Bar of Michigan qualifies as a member of a public body for purposes of the Whistleblowers’ Protection Act. The Mastromarco Firm (by Victor J. Mastromarco, Jr., and Russell C. Babcock) for Tammy McNeill-Marks. Miller Johnson (by Sarah K. Willey) for MidMichi-gan Medical Center-Gratiot. Before: SAWYER, P.J., and HOEKSTRA and WILDER, JJ. WILDER, J. In this employment matter, plaintiff, Tammy McNeill-Marks, appeals as of right the trial court’s order granting summary disposition to defendant, MidMichigan Medical Center-Gratiot (MMCG). We affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion. I. FACTUAL BACKGROUND This case arises out of plaintiffs discharge from her position at MMCG. In 1991, plaintiff was hired as a registered nurse at a different MidMichigan Medical Center, which is located in Midland. She subsequently transferred to the Gratiot location, where she began to serve as clinical manager of perioperative services and ambulatory care. Between 2006 and 2008, plaintiff adopted two children and had a third placed in her custody (collectively, the children). Each child has a different father, but the biological mother of all three is Sandi Lee Freeze, who is plaintiffs second cousin. Freeze’s mother—the children’s grandmother—is Marcia Fields. According to plaintiff, Fields suffers from several psychiatric disorders, including “paranoid schizophrenia, multiple personality disorder,” and “bipolar depression.” During the adoption process, Fields began to threaten plaintiff. She threatened to kill plaintiff, the children, and plaintiffs biological children. Such threats led plaintiff to seek a personal protection order (PPG) against Fields, which was eventually granted on an ex parte basis. It is unclear from the record precisely when the initial PPG was issued, but presumably because it had expired, on December 19, 2012, plaintiff, through her legal counsel, Richard Gay, filed a petition again seeking an ex parte PPO against Fields. That same day, a circuit court judge granted plaintiffs ex parte petition, entering a PPO that prohibited Fields from having any contact with the children and from “posting a message through the use of any medium of communication, including the Internet or a computer or any electronic medium, pursuant to MCL 750.411s.” After its entry, Fields allegedly violated the PPO on several occasions by sending electronic messages to plaintiff. When plaintiff contacted local police regarding Fields’s purported violations of the PPO and attempted to file a police report, the police “told [her] that [she] needed to contact [her] attorney, not [the police],” because the PPO had never been properly entered in the Law Enforcement Information Network (LEIN). On January 14, 2013, the circuit court entered an amended PPO, this time ordering Fields, among other things, to refrain from “stalking” plaintiff, as that term is “defined under MCL 750.411h and MCL 750.411Í, which includes but is not limited to” (1) “following or appearing within sight of’ plaintiff, (2) appearing at plaintiffs workplace or residence, and (3) “approaching or confronting [plaintiff] in a public place or on private property.” The amended PPO explicitly noted that it would “remainO in effect until 12/31/2013.” Ignoring the amended PPO, Fields continued to contact plaintiff. On December 27, 2013—four days before the expiration date of the amended PPO—plaintiff filed a motion, through Gay, to extend the amended PPO for another year. Later that day, the circuit court granted plaintiffs motion on an ex parte basis. The court entered a new PPO, which again ordered Fields to refrain from “stalking” plaintiff, as that term is “defined under MCL 750.411h and MCL 750.411Í,” and which specified that the order was “effective when signed, enforceable immediately,” and would “remain 0 in effect until 12/31/2014.” While at work roughly two weeks later, on January 13, 2014, plaintiff encountered Fields in a hallway at MMCG. At her deposition, plaintiff described the encounter as follows: Q. ... Okay. You were walking down the hallway? A. I came out of the operating room door .... I said “Hello” because you’re trained to always speak to people. I didn’t even realize who she [Fields] was .or who the transporter was that was transporting her. I got three steps down the hallway and [Fields] said, “Hello, Tammy,” in one of those little voices she does, and my stomach sank. Q. She was being transported, in the sense that she was not walking herself? A. Correct. She was in a wheelchair.. .. Q. Do you know what area of the hospital she had been admitted into? A. No, I do not. Nor did I at that time. Q. Did you understand that she was inpatient? A. No, I did not. Q. You didn’t know, or you understood something different than that? A. No, I had no way of knowing where [Fields] had came from [sic] in the hospital. Those transporters transport from ER, the tower, all outpatient services, she could have came from [sic] anywhere and be going anywhere. Q. After you had passed, [Fields] said, “Hello, Tammy”? A. Yes. Q. In whatever voice you had described? A. A little sing-songy voice she has when she feels she has passed something over on you like a little kid. It’s very specific.[] Q. Were any other words exchanged? A. No. I immediately went into another door. Q. Do you have any reason to think that she somehow planned that encounter with you, meaning that she knew that you were going to be coming down the hallway in the moment that she was getting wheeled to a procedure? [Plaintiffs counsel places an objection to foundation on the record, then instructs plaintiff to answer.] A. I believe on more than one occasion she has admitted herself in the hospital with the hopes that she could ... make contact with me, yes. Q. Well, I’m talking about with regard to this particular encounter, and then if you want we can expand on that; okay? A. Okay. Q. So with this particular encounter, the two of you passed each other in the hallway. A. I don’t believe that. . . that anybody could necessarily — that wouldn’t be a reasonable expectation, that she could plan to pass me in the hallway. Q. After that encounter in the hallway, did you see her again at [MMCG]? A. No, I did not. After encountering Fields, plaintiff immediately went into an employee break room. She was “visibly upset and shaking,” so much so that a coworker voiced concern, asking plaintiff what was wrong. Plaintiff was particularly upset that, through their encounter, Fields had learned “specifically where in the hospital” plaintiff worked. She feared that such knowledge would make Fields a danger to not only plaintiff but also her fellow employees. A short time later, plaintiff called her supervisor, Theresa Baily, who was already aware that plaintiff held a PPO against Fields, and informed Baily about what had transpired. After speaking with Baily, plaintiff called her attorney, Gay, and told him, “[Fields] showed up today at my workplace.” According to plaintiff, Gay never asked for further explanation about what plaintiff “meant” when she said that Fields “showed up” at MMCG. At no time did plaintiff inform Gay that Fields “was there in any form as a patient” or that Fields had been in a wheelchair. Likewise, plaintiff said nothing to Gay about the possibility of serving Fields with the latest PPO while Fields was at MMCG. Rather, questioning whether it was advisable to serve the PPO, plaintiff instructed Gay “not to serve [Fields] at all. . . .” Gay confirmed that