Whistleblower Cases

ANZALDUA v NEOGEN CORPORATION Docket No. 296978. Submitted May 13, 2011, at Lansing. Decided May 17, 2011, at 9:20 a.m. Sharon Anzaldua brought an action in the Ingham Circuit Court against Neogen Corporation, alleging retaliatory discharge in violation of Michigan’s public policy. In May 2007, plaintiff had cooperated with a state official who performed a boiler inspection, which led to a citation being issued to defendant. Plaintiff was terminated in June 2007. Plaintiff filed her complaint in May 2009. Defendant moved for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). The court, Rosemarie E. Aquilina, J., granted the motion, concluding that the gravamen of plaintiffs complaint essentially alleged that she had been engaged in activity protected under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Therefore, the court concluded that the WPA provided the exclusive remedy for plaintiffs claim and that her failure to bring her claim within the 90-day period of limitations set forth in MCL 15.363(1) required that summary disposition be granted in defendant’s favor. Plaintiff appealed. Defendant cross-appealed, arguing that the trial court had improperly made a finding of fact when deciding the motion for summary disposition. The Court of Appeals held: 1. The WPA provides employees protection from discharge from employment or other retaliation when, among other things, the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body. The term “inquiry” encompasses an administrative search. Thus, plaintiff was engaged in protected activity under the WPA when she cooperated with a state officer performing a boiler inspection, and her claim was subject to the WPA’s exclusive remedy. Plaintiffs attempt to characterize her claim as one for retaliatory termination in violation of public policy, rather than a claim under the WPA, failed. Thus, plaintiff was bound by the 90-day limitations period set forth in the WHPA, and the trial court did not err by granting summary disposition in defendant’s favor. 2. The trial court’s decision to grant summary disposition was not premature even though discovery was not complete because plaintiff did not demonstrate a fair likelihood that further discovery could reveal anything to refute the trial court’s correct conclusion that plaintiffs exclusive remedy was under the WPA. 3. Defendant argued on cross-appeal that the trial court improperly made a factual finding that plaintiff was terminated because of her participation in the boiler inspector’s investigation. While a trial court may not make findings of fact or credibility determinations when deciding a motion for summary disposition, MCR 2.116(C)(8) requires a trial court to accept all well-pleaded factual allegations as true. Thus, it was apparent that the challenged statement in the trial court’s order was a summary of plaintiffs allegations rather than an improper finding of fact. Defendant failed to establish that the trial court’s statement was improper. Affirmed. 1. Statutes — Whistleblowers’ Protection Act — Protected Activity — Inquiry. The Whistleblower’s Protection Act provides employees protection from discharge from employment or other retaliation when, among other things, the employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body; an inquiry includes an administrative search (MCL 15.362). 2. Statutes — Whistleblowers’ Protection Act — Exclusive Remedy — Period of Limitations. A plaintiff asserting a claim that arises from circumstances that establish a claim for relief under the Whistleblower’s Protection Act is subject to that act’s exclusive remedy and cannot evade the act’s 90-day limitations period by recasting the claim as one for retaliatory discharge in violation of public policy. Pitt McGehee Palmer Rivers & Golden, PC (by Robert W. Palmer and Beth M. Rivers), for Sharon Anzaldua. Oade, Stroud & Kleiman, P.C. (by Ted W. Stroud), for Neogen Corporation. Before: OWENS, P.J., and O’CONNELL and METER, JJ. PER CURIAM. Plaintiff appeals as of right the trial court’s order granting defendant’s motion for summary disposition under MCR 2.116(C)(7) (statute of limitations), (C)(8) (failure to state a claim), and (C)(10) (no genuine issue of material fact). Defendant cross-appeals, arguing that the trial court made an improper finding of fact when deciding its motion. We affirm. I. FACTS AND PROCEEDINGS This action arose from defendant’s termination of plaintiffs employment in June 2007. In May and June 2007, defendant was in the process of establishing a laboratory for the manufacture of an equine botulism vaccine. The manufacture of this vaccine is regulated by federal and state agencies to avoid safety hazards and security breaches pertaining to the botulism organism used in the manufacturing process. Plaintiff had been selected as the Select Agent Program Alternate Responsible Official in defendant’s Lansing facility. Under applicable regulations, no one could be admitted to the restricted laboratory areas (the Bot suite) without the presence and authorization of plaintiff or the primary responsible official. However, these restrictions were not to be in effect until defendant actually received the botulism agent in October 2007. Plaintiff alleged that she was terminated from her employment with defendant in June 2007 in retaliation for her compliance with a state Department of Labor deputy boiler inspector, A1 Ladd. Plaintiff had escorted Ladd through the facility when he arrived for an unannounced inspection on May 3, 2007. The inspector discovered an unregistered boiler in the facility and issued a citation requiring defendant to bring the boiler into conformity with state regulations. When the inspector returned on May 14, 2007, defendant’s maintenance manager, A1 Meredith, informed plaintiff that Meredith, not plaintiff, would escort Ladd through the facility for the inspection. Meredith instructed plaintiff not to talk to Ladd and to channel all communications through Meredith. Nonetheless, plaintiff accompanied Ladd to the Bot suit and cooperated with him when he asked questions about another unregistered boiler. Plaintiff filed this action in May 2009, alleging a claim for retaliatory discharge in violation of public policy because she was terminated for complying with her statutory duty to grant Ladd access to the facility to inspect the boilers. Defendant moved for summary disposition under MCE 2.116(C)(7), (8), and (10), arguing that there was no genuine issue of material fact that plaintiffs claim arose under the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., that plaintiff had failed to state a cognizable claim independent of the WPA, and that plaintiffs claim was untimely under the WPA’s 90-day limitations period, MCL 15.363. Plaintiff denied that she was engaged in protected activity under the WPA and maintained that she had pleaded a valid claim for retaliatory discharge contrary to public policy. The trial court agreed with defendant and granted its motion. II. STANDARD OF REVIEW This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Doe v Roman Catholic Archbishop of the Archdiocese of Detroit, 264 Mich App 632, 638; 692 NW2d 398 (2004). When reviewing a motion under MCE 2.116(C)(7), a reviewing court must consider all affidavits, pleadings, and other documentary evidence submitted by the parties and construe the pleadings and evidence in favor of the nonmoving party. Id. “Absent a disputed question of fact, the determination whether a cause of action is barred by a statute of limitation is a question of law that this Court reviews de novo.” Id. A motion brought under MCR 2.116(C)(8) tests whether the complaint states a claim as a matter of law. Teel v Meredith, 284 Mich App 660, 662; 774 NW2d 527 (2009). In reviewing the motion, the court accepts as true all well-pleaded allegations and construes them in a light most favorable to the nonmoving party. Id. The motion should be granted if no factual development could possibly justify discovery. Id. A motion under MCR 2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Driver v Naini, 287 Mich App 339, 344; 788 NW2d 848 (2010). The nonmoving party may not rest on the allegations in the pleadings, but must set forth, through documentary evidence, specific facts demonstrating a genuine issue for trial. Id. III. ANALYSIS The WPA provides a remedy for an employee who suffers retaliation for reporting or planning to report a suspected violation of a law, regulation, or rule to a public body. MCL 15.362; MCL 15.363; Shallal v Catholic Social Servs of Wayne Co, 455 Mich 604, 610; 566 NW2d 571 (1997). The WPA provides that an employer shall not discharge or otherwise retaliate against an employee because the employee “reports or is about to report... a violation or a suspected violation of a law or regulation” or because “an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body.” MCL 15.362. A prima facie case under the WPA arises when (1) the plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged or discriminated against, and (3) a causal connection exists between the protected activity and the adverse employment decision. Shaw v City of Ecorse, 283 Mich App 1, 8; 770 NW2d 31 (2009). The underlying purpose of the WPA is protection of the public. Dolan v Continental Airlines/Continental Express, 454 Mich 373, 378; 563 NW2d 23 (1997). The statute “meets this objective by protecting the whistle-blowing employee and by removing barriers that may interdict employee efforts to report violations or suspected violations of the law.” Id. at 378-379. The WPA is a remedial statute and must be liberally construed to favor the persons that the Legislature intended to benefit. Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 406; 572 NW2d 210 (1998). The WPA provides the exclusive remedy for such retaliatory discharge and consequently preempts common-law public-policy claims arising from the same activity. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 70, 78-79; 503 NW2d 645 (1993), overruled in part on other grounds by Brown v Detroit Mayor, 478 Mich 589, 595 n 2 (2007). However, if the WPA does not apply, it provides no remedy and there is no preemption. Driver v Hanley (After Remand), 226 Mich App 558, 566; 575 NW2d 31 (1997). The WPA imposes a 90-day limitations period for a civil action arising from a violation of the act. MCL 15.363(1). In determining whether a statute of limitations applies, this Court looks to the true nature of a complaint, reading the complaint as a whole and looking beyond the parties’ labels to determine the exact nature of the claim. Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007). Accordingly, a plaintiff asserting a claim for termination in violation of public policy that arises from circumstances that establish a claim for relief under the WPA will be subject to the WPA’s exclusive remedy and will not be permitted to evade the 90-day limitations period by recasting the claim as a public-policy claim. Plaintiff argues that she was not engaged in protected activity under the WPA with respect to the boiler inspection because she was not requested by a public body to participate in an “investigation” or “inquiry” as those terms are used in the WPA. The WPA defines a “public body” as including “[a] state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.” MCL 15.361(d)(¿). The deputy boiler inspector, as a state officer, thus falls within the definition of a public body under the WPA. However, plaintiff characterizes Ladd’s boiler inspection as a “routine inspection” that cannot be classified as an investigation or inquiry under the WPA. The WPA does not define the terms “investigation” or “inquiry.” Terms that are not defined in a statute must be given their plain and ordinary meanings, and it is appropriate to consult a dictionary for definitions. Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). Black’s Law Dictionary (8th ed), p 844, defines “investigate” as “[t]o inquire into (a matter) systematically” or “[t]o make an official inquiry.” It defines “inquiry” in the context of parliamentary law as “[a] request for information, either procedural or substantive” and in the context of international law as fact-finding. Id. at 808. Random House Webster’s College Dictionary (2000) defines “inquiry” as “1. a seeking or request for truth, information, or knowledge. 2. an investigation, as into an incident. 3. a question; query.” The general dictionary definition of “inquiry” meshes with the legal dictionary’s definition of the term “administrative search,” which is defined in Black’s Law Dictionary (8th ed), p 1378, as “[a] search of public or commercial premises carried out by a regulatory authority for the purpose of enforcing compliance with health, safety, or security regulations.” The activity of an administrative search thus involves an inquiry as defined in Random House Webster’s College Dictionary as a seeking or request for truth, information, or knowledge. Reading these definitions together, and in view of the WPA’s delineation of protected activity, it is apparent that the term “inquiry” in the WPA encompasses an administrative search such as the inspection carried out here by the boiler inspector. Thus, plaintiff was engaged in protected activity when she cooperated with Ladd’s inspection, and her claim was therefore subject to the WPA’s exclusive remedy. Dudewicz, 443 Mich at 70. Accordingly, plaintiff failed to plead a cognizable public-policy claim independent of the WPA. Plaintiffs reliance on Messenger v Dep’t of Consumer & Indus Servs, 238 Mich App 524; 606 NW2d 38 (1999), in support of her argument that the boiler inspection was not an investigation within the meaning of the WPA is misplaced. In Messenger, the plaintiff, a licensed physician, was prosecuted for and acquitted of manslaughter for withdrawing life support from his infant son. Id. at 527. The plaintiff presented a request under the Freedom of Information Act (FOIA), MCL 15.321 et seq., for information that the defendant, the Department of Consumer and Industry Services, had compiled regarding the plaintiffs prosecution. Messenger, 238 Mich App at 527. The defendant contended that the information was exempt from disclosure under the Public Health Code (PHC), specifically MCL 333.16238(1), which classified as confidential any information obtained in an investigation before the issuance of an administrative complaint. Messenger, 238 Mich App at 527-528. This Court held that the FOIA exemption did not apply because there had not been an investigation within the meaning of MCL 333.16238(1), explaining: The PHC does not expressly define the term “investigation.” In the absence of a statutory definition of a term, a court may consult dictionary definitions to determine the common meaning of a word. Popma v Auto Club Ins Ass’n, 446 Mich 460, 470; 521 NW2d 831 (1994); Weisman v US Blades, Inc, 217 Mich App 565, 568; 552 NW2d 484 (1996). Random House Webster’s College Dictionary (2d ed.), p 668, defines an “investigation” as “the act or process of investigating or the condition of being investigated” or “a searching inquiry for ascertaining facts; detailed or careful examination.” Similarly, to “investigate” is “to search or examine into the particulars of; examine in detail.” Id. Further, §§ 16221 and 16233 of the PHC, MCL 333.16221, 333.16233, instruct that, during the course of an investigation, the department may hold hearings, take testimony, and administer written, oral, and practical tests to a licensee as investigatory tools. Applying the general principles of statutory construction and the common meaning of “investigation” to the facts of this case, we find that defendant’s conduct did not amount to an “investigation” as contemplated by the PHC. Defendant did not engage in a searching inquiry for ascertaining facts, nor did it conduct a detailed or careful examination of the events surrounding plaintiffs alleged misconduct. Rather, by its own admission, defendant conducted only an “administrative review,” a “monitoring and a preliminary compilation of information,” a “preliminary review,” and a “preliminary information gathering process ... limited to non-intrusive measures” that preceded a “formal field investigation.” Indeed, defendant’s passive efforts at collecting information concerning the manslaughter charges filed against plaintiff consisted of nothing more than obtaining documents from public agencies and monitoring the criminal proceeding. On this record, we find that defendant’s conduct is properly classified as that which precedes a formal “investigation” and does not rise to the level of an “investigation” as contemplated by the PHC. [Id. at 534-535 (citations omitted).] Plaintiff contends that the boiler inspector’s visits did not rise to the level of an investigation because they did not involve “a searching inquiry for ascertaining facts” or “a detailed or careful examination of the events surrounding” alleged misconduct. However, we are not persuaded that this Court’s construction of the term “investigation” as used in the PHC, MCL 333.16238(1), requires a similarly restrictive interpretation of the terms “investigation” and “inquiry” as used in the WPA. Whereas the WPA’s inclusions of protected persons must be construed broadly, Chandler, 456 Mich at 406, exemptions from disclosure under the FOIA must be narrowly construed, Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211, 232; 507 NW2d 422 (1993). Moreover, the WOPA’s protection is not limited only to persons who participate in investigations, but extends to employees who are requested by a public body to participate in “an investigation, hearing, or inquiry held by that public body.” MCL 15.362 (emphasis added). Indeed, the Messenger Court’s construction of the term “investigation” as used in the PHC builds on the term “inquiry”; an investigation encompasses “a searching inquiry for ascertaining facts; detailed or careful examination.” This is consistent with the Black’s Law Dictionary definition of “investigation” as including an “official inquiry” and to “systematically” inquire into a matter. Read together, these definitions suggest a hierarchy of governmental acquisition of information, with probing or formal investigations being required to apply the FOIA exemption and with less intrusive and less formal inquiries being sufficient to come within the scope of the WPA. The boiler inspector’s inspection fits the definition of “inquiry” in the WPA. Accordingly, an employee who participates in an investigation or inquiry, which includes an administrative search or inspection, is a protected person under the WPA. Consequently, plaintiffs action was subject to the WPA’s exclusive remedy and was therefore barred by the 90-day limitations period in that act. Dudewicz, 443 Mich at 70; MCL 15.363. Accordingly, summary disposition was proper under MCR 2.116(C)(7), because plaintiffs claim was untimely, and also under MCR 2.116(C)(8) and (10), because plaintiff failed to plead or support a claim that was not subject to the WPA’s exclusive remedy. Because we conclude that the WPA was plaintiffs exclusive remedy, it is unnecessary to consider the merits of plaintiffs public-policy theory. We also disagree with plaintiffs argument

ALOHA E. BRYSON, M.D., Ph.D., Plaintiff v. HAYWOOD REGIONAL MEDICAL CENTER, PRIMEDOC MANAGEMENT SERVICES, INC. and PRIMEDOC OF HAYWOOD COUNTY, P.A., Defendants No. COA09-270 (Filed 15 June 2010) 1. Appeal and Error— interlocutory order and appeal — statutory privilege asserted — medical review committee records An appeal was properly before the Court of Appeals even though it was interlocutory where it involved an assertion of statutory privilege in medical review committee records. 2. Discovery— medical review committee records — privilege not established The trial court did not err by entering an order compelling discovery of certain documents in an employment action involving a hospital where defendant contended that the documents had been produced by a medical review committee and were protected from discovery under N.C.G.S. § 131E-95(b). The documents did not appear to be privileged on their face, and defendant submitted no affidavits or other evidence to support its claim. Appeal by defendant Haywood Regional Medical Center from order entered 19 December 2008 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 16 September 2009. Elliot Pishko Morgan, P.A., by Robert M. Elliot, for plaintiffappellee. Van Winkle, Buck, Wall, Starnes & Davis P.A., by Allan R. Tarleton, for defendant-appellant Haywood Regional Medical Center. GEER, Judge. Defendant Haywood Regional Medical Center (“HRMC”) appeals from the trial court’s order granting in part plaintiff Dr. Aloha E. Bryson’s motion to compel discovery of certain documents. On appeal, HRMC contends the trial court erred in concluding that the documents were not privileged under N.C. Gen. Stat. § 131E-95(b) (2009) and in ordering HRMC to produce and disclose those documents to plaintiff. Because HRMC has failed to meet its burden of showing that the documents fall into one of the three categories of privileged material under N.C. Gen. Stat. § 131E-95(b), we affirm. Facts On 26 February 2008, plaintiff filed a complaint in Haywood County Superior Court against HRMC, as well as Primedoc Management Services, Inc. and Primedoc of Haywood County, P.A. (“the Primedoc defendants”). Plaintiff, an internist hired by the Primedoc defendants to work at HRMC from March 2005 to December 2007, alleged that, during her time at HRMC, she became concerned about patient safety issues in the Intensive Care Unit (“ICU”) and Definitive Observation Care Unit (“DOCU”). Plaintiff alleged that she observed numerous nursing errors in the ICU and DOCU, including (1) mistakes in the dosing and administration of patient medication; (2) failure to accurately and completely follow doctors’ orders; and (3) instances of nurses, while on duty, text messaging, using cell phones for personal calls, sleeping, and shopping online. Plaintiff documented these patient safety issues by filing occurrence reports with HRMC’s risk manager in accordance with hospital policy. According to plaintiff, HRMC officials began pressuring her to cease filing occurrence reports. Plaintiff alleged HRMC gave false information to the Primedoc defendants about her work and directed that her employment be terminated in retaliation for her complaints about patient care. Plaintiff asserted claims for wrongful interference with contract and defamation against HRMC. Plaintiff also asserted claims for breach of contract, breach of the covenant of good faith and fair dealing, and constructive discharge against the Primedoc defendants. Plaintiff also brought claims for civil conspiracy, punitive damages, and unfair and deceptive trade practices against all defendants. On 29 February 2008, plaintiff served HRMC with her first set of interrogatories and her first set of requests for production of documents. In its responses, HRMC refused to respond to several of plaintiff’s requests, contending that they sought disclosure of the proceedings, records, and materials produced or considered by a medical review committee, which constituted information protected from discovery under N.C. Gen. Stat. § 131E-95(b). On 16 September 2008, plaintiff filed a motion to compel discovery. Although HRMC filed a written response to the motion to compel, it did not submit any affidavits or other evidence supporting its claims of privilege. In an order entered 24 October 2008, the trial court directed HRMC to respond to most of plaintiff’s discovery requests. With respect, however, to certain interrogatories and requests for production, the trial court ordered HRMC to submit the documents and information for its in camera review. After conducting the in camera review, the trial court entered an order on 19 December 2008 granting an order protecting some of the documents and ordering others to be produced. HRMC timely appealed to this Court. Discussion The trial court’s order granting in part plaintiff’s motion to compel discovery is an interlocutory order. “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). N.C. Gen. Stat. § 7A-27(d)(l) (2009), however, authorizes an appeal from an interlocutory order that affects a substantial right. “[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under sections l-277(a) and 7A-27(d)(1).” Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. This appeal is, therefore, properly before us. See Armstrong v. Barnes, 171 N.C. App. 287, 290-91, 614 S.E.2d 371, 374 (holding challenged discovery order affected substantial right because “assertions of statutory privilege relate directly to the matters to be disclosed under the trial court’s interlocutory discovery order”), disc. review denied, 360 N.C. 60, 621 S.E.2d 173 (2005). The sole issue on appeal is whether the trial court erred in compelling HRMC to disclose certain documents to plaintiff in discovery. “ ‘Whether or not the party’s motion to compel discovery should be granted or denied is within the trial court’s sound discretion and will not be reversed absent an abuse of discretion.’ ” Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d 316, 318-19 (2007) (quoting Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994)). It is well established, however, that this Court reviews questions of law, as well as questions of statutory construction, de novo. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008). Thus, we review de novo whether the requested documents are privileged under N.C. Gen. Stat. § 131E-95(b). The information that HRMC contends on appeal is protected from disclosure can be grouped into two categories. The first category contains three internal documents of HRMC. One document is an e-mail dated 17 December 2007 from Shirley Trantham, HRMC’s director of Risk Management, to Janet Ledford with the subject of “Peer Review Request.” In the e-mail Trantham reviews six instances of patient care at HRMC. The e-mail summarizes each incident, notes whether any occurrence reports were received, and discusses any quality concerns. It does not identify Ms. Ledford, what position she held, or even for whom she worked. Nor does the e-mail indicate who requested the information or for what purpose it was generated. The second document is a memorandum dated 18 December 2007 with a title indicating that Shirley Harris, former director of Clinical Services at HRMC, requested a review of patient charts. The document, which contains summaries and analyses of six instances of patient care, does not indicate who authored the document, for what purpose it was generated, or who received it. The third document is a memorandum dated 19 December 2007, authored by Dr. Harry Lipham, Chairman of the Intensive Care Unit at HRMC, and addressed to Shirley Harris and Dr. Nancy Freeman. The memorandum indicates it was authored by Dr. Lipham at the request of “Dr. Freeman from the Hospital Board for information concerning allegations that have been made by Dr. Aloha Bryson concerning [certain patients’] care.” It summarizes six patient charts and analyzes the appropriateness of the care provided. The document does not identify who Dr. Freeman is or the purpose for which she requested the information. The documents in the second category were apparently transmitted between HRMC and an outside company called MDReview. They include (1) a letter to Eileen Lipham of HRMC, written on letterhead with the name “MDReview,” that thanks her “for calling on MDReview to assist [her] with [her] peer review needs”; (2) six documents entitled “Peer Review Report” authored by Scott A. Eisman, M.D.; and (3) Dr. Eisman’s curriculum vitae. Each of the reports warn that “THIS IS A CONFIDENTIAL PEER REVIEW DOCUMENT” and state that the document “was prepared at the request of [HRMC] in order to provide an independent professional opinion of the care rendered” to a specifically-referenced patient. “ ‘It is for the party objecting to discovery [of privileged information] to raise the objection in the first instance and he has the burden of establishing the existence of the privilege.’ ” Adams v. Lovette, 105 N.C. App. 23, 28, 411 S.E.2d 620, 624 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2016 (1970)), aff’d per curiam, 332 N.C. 659, 422 S.E.2d 575 (1992). HRMC, therefore, has the burden of establishing that these documents are protected. HRMC contends the documents are protected by N.C. Gen. Stat. § 131E-95(b), which provides in part: The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and . . . shall not be subject to discovery or introduction into evidence in any civil action against a hospital . . . which results from matters which are the subject of evaluation and review by the committee. N.C. Gen. Stat. § 131E-76(5) (2009) in turn defines “[mjedical review committee”: (5) “Medical review committee” means any of the following committees formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing: a. A committee of a state or local professional society. b. A committee of a medical staff of a hospital. c. A committee of a hospital or hospital system, if created by the governing board or medical staff of the hospital or system or operating under written procedures adopted by the governing board or medical staff of the hospital or system. d. A committee of a peer review corporation or organization. “By its plain language, N.C. Gen. Stat. § 131E-95 creates three categories of information protected from discovery and admissibility at trial in a civil action: (1) proceedings of a medical review committee, (2) records and materials produced by a medical review committee, and (3) materials considered by a medical review committee.” Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 126, 678 S.E.2d 787, 791-92 (2009), disc. review denied, 363 N.C. 813, 693 S.E.2d 253 (2010). The statute also, however, provides that “information, documents, or other records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee.” N.C. Gen. Stat. § 131E-95(b). The Supreme Court construed these provisions in Shelton v. Morehead Mem’l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986): These provisions mean that information, in whatever form available, from original sources other than the medical review committee is not immune from discovery or use at trial merely because it was presented during medical review committee proceedings; neither should one who is a member of a medical review committee be prevented from testifying regarding information he learned from sources other than the committee itself, even though that information might have been shared by the committee. The Court explained further: “The statute is designed to encourage candor and objectivity in the internal workings of medical review committees. Permitting access to information not generated by the committee itself but merely presented to it does not impinge on this statutory purpose. These kinds of materials may be discovered and used in evidence even though they were considered by the medical review committee.” Id. at 83-84, 347 S.E.2d at 829. See also Cunningham v. Charles A. Cannon Jr. Mem’l Hosp., Inc., 187 N.C. App. 732, 737, 654 S.E.2d 24, 27 (2007) (“However, § 131E-95 applies to the information generated by a medical review committee. . . . Regardless of its form, the information sought by plaintiff was generated by defendant [physician], not the [medical review committee]. Therefore, the information is discoverable and the trial court did not abuse its discretion in denying defendant’s motion for a protective order.”), disc. review denied, 362 N.C. 356, 661 S.E.2d 244 (2008). HRMC argues that the e-mail and memoranda in the first category of documents are privileged because they relate to internal peer review investigations of patient charts requested by its Risk Management Department. HRMC contends that it is clear from the face of these documents that they were written for the purpose of evaluating the quality of health care and, therefore, that we can assume they were generated by or for a medical review committee. We do not agree. In Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319, this Court stressed that mere assertions that documents constitute peer review materials and meet the requirements of Shelton are insufficient. A trial court properly grants a motion to compel when the “defendants [do] not present any evidence tending to show that the disputed incident reports were (1) part of the [medical review committee’s] proceedings, (2) produced by the [medical review committee], or (3) considered by the [medical review committee] as required by N.C. Gen. Stat. § 131E-107.” Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319. As this Court explained, the statutory requirements are substantive, not formal, requirements. Thus, in order to determine whether the peer review privilege applies, a court must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case. The title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee. Id. at 752, 641 S.E.2d at 319. In the analogous attorney-client privilege context, this Court has similarly held that “[m]ere assertions” that privilege applies “will not suffice.” Multimedia Publ’g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 576, 525 S.E.2d 786, 792, disc. review denied, 351 N.C. 474, 543 S.E.2d 492 (2000). The party claiming privilege must instead proffer “some objective indicia” that the privilege applies. Id. Here, however, HRMC did not submit any “evidence,” as required by Hayes, or “objective indicia,” as required by Multimedia Publishing. Instead, like the Court in Brown v. Am. Partners Fed. Credit Union, 183 N.C. App. 529, 539, 645 S.E.2d 117, 124 (2007), addressing the attorney-client privilege, “we can only determine the applicability of the privilege based upon what the [documents] reveal on their face.” Starting with the first category of documents, HRMC has pointed to no evidence in the record that Shirley Trantham, who sent the 17 December 2007 e-mail, or Janet Ledford, who received it, were members of a medical review committee. The author and recipients of the 18 December 2007 memorandum are not even identified. Neither of these documents explicitly states that it was generated by members of a medical review committee or for a medical review committee’s consideration. There is absolutely no evidence in the record from which this Court can infer that either document is privileged under § 131E-95(b). See Brown, 183 N.C. App. at 535, 645 S.E.2d at 122 (holding that defendant failed to establish that board of directors meeting minutes were protected by attorney-client privilege because documents listed individuals as being present at meeting, but did not identify their positions and, therefore, defendant could not demonstrate that privilege had not been waived). The third document, the 19 December 2007 memorandum, indicates that it was authored by the Chair of the Intensive Care Unit at HRMC for Dr. Freeman “from the Hospital Board.” Nothing in the document itself and nothing in the record specifically identifies what “the Hospital Board” is. In plaintiff’s complaint, she alleges that she composed a letter to the Hospital Authority Board of Commissioners about her concerns. Even assuming arguendo that this is the “Hospital Board” to which the memorandum refers, the Supreme Court in Shelton, 318 N.C. at 84, 347 S.E.2d at 829-30, held that a hospital’s Board of Trustees does not fit the definition of a medical review committee. HRMC has, therefore, failed to present any evidence that the “Hospital Board” in the 19 December 2007 memorandum constituted a medical review committee within the meaning of N.C. Gen. Stat. § 131E-95(b). Turning to the second category of documents, HRMC contends that the six reports and Dr. Eisman’s curriculum vitae are documents generated by a medical review committee because MDReview, the apparent source of these documents, is a “peer review corporation or organization.” HRMC has, however, failed to point to any evidence in the record showing that MDReview is a peer review organization or corporation or that it authored those documents for that purpose. Although the reports identify themselves as peer review documents, as Hayes stated, “[t]he title, description, or stated purpose attached to a document by its creator is not dispositive ....” 181 N.C. App. at 752, 641 S.E.2d at 319. We, therefore, cannot conclude simply from a bare name that MDReview is a peer review organization or corporation. In any event, even if MDReview is a peer review organization or corporation, HRMC has not provided any evidence, as required by N.C. Gen. Stat. § 131E-76(5), that the reports were generated by “[a] committee of a peer review corporation or organization.” (Emphasis added.) In sum, HRMC submitted no affidavits or other evidence to support its claim that the documents at issue were protected from discovery under N.C. Gen. Stat. § 131E-95(b). In addition, the documents on their face do not establish that they are privileged. Thus, HRMC has failed to meet its burden of proof, and accordingly, we affirm the trial court’s order compelling discovery. Affirmed. Judges STROUD and ERVIN concur.

WEISHUHN v CATHOLIC DIOCESE OF LANSING Docket No. 287174. Submitted December 9, 2009, at Detroit. Decided January 26, 2010, at 9:00 a.m. Madeline Weishuhn brought an action in the Genesee Circuit Court, Archie L. Hayman, J., against the Catholic Diocese of Lansing and St. Mary’s Catholic Church, alleging violations of the Civil Rights Act (CRA), MCL 37.2101 et seq., and the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., following the defendants’ decision not to renew plaintiffs contract to teach mathematics and religion classes at St. Mary’s Elementary School in Mount Morris. The trial court granted defendants’ motions for summary disposition of the WPA claim and the CRA claim. Defendants appealed by leave granted with regard to the CRA claim. The Court of Appeals, Zahra, PJ., and Whitbeck and Beckering, JJ., held that the ministerial exception to the application of employment-discrimination and civil rights statutes to religious institutions and their ministerial employees exists in Michigan. The Court of Appeals vacated the order denying summary disposition of the CRA claim and remanded the case to the trial court for an analysis, pursuant to a nonexhaustive list of factors, whether plaintiff was a ministerial employee and conclusions in that regard. 279 Mich App 150 (2008). On remand, the trial court determined that the ministerial exception applied to plaintiff and dismissed the CRA claim. Plaintiff appealed the dismissal of both her WPA claim and her CRA claim. The Court of Appeals held,-. 1. The trial court did not err by determining that plaintiffs duties were primarily religious in nature. Teaching “secular” classes is not necessarily purely secular in the context of religious schools, particularly in this case where plaintiff stated that she incorporated her religious teachings into her mathematics lessons. 2. All aspects of plaintiffs work had religious significance, including her teaching of religion classes and involvement in planning masses and preparing students for confirmation and reconciliation services. 3. Plaintiffs role in educating and indoctrinating the children as a teacher of religion was important to and furthered the purposes of the church. 4. Although plaintiff did not assume a liturgical role within the entire congregation, she was intimately involved in liturgical planning of worship services, as well as providing confirmation and reconciliation services for students. The trial court did not err by determining that plaintiff was a ministerial employee and that defendants were entitled to summary disposition of the CRA claim under MCR 2.116(C)(4). 5. The WPA claim is also subject to the ministerial exception. The ministerial exception operates to bar any claim the resolution of which would limit a religious institution’s right to select who will perform particular spiritual functions. The exception may be applied to WPA claims that involve a religious institution and a ministerial employee. 6. The ministerial exception does not apply to all employment decisions by religious institutions. It applies only to claims involving a religious institution’s choice as to who will perform spiritual functions. 7. Termination of the employment of a ministerial employee by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so. The trial court did not err by dismissing both the CRA claim and the WTPA claim. Affirmed. 1. Constitutional Law — Civil Rights — Ministerial Exception — Whistle-blowers’ Protection Act. The “ministerial” exception is a nonstatutory, constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their ministerial employees; the exception generally bars inquiry into a religious institution’s underlying motivation for employment decisions regarding ministerial employees; the exception applies to claims under the Civil Rights Act and the Whistleblowers’ Protection Act and operates to bar any claim the resolution of which would limit a religious institution’s right to select who will perform particular spiritual functions; the appropriate analysis is the religiously affiliated nature of the institution and the employee’s role there, not the particular issues that spring from a termination of employment and the resulting claims (MCL 15.361 et seq., 37.2101 et seq.). 2. Constitutional Law — Civil Rights — Employment Discrimination — Ministerial Exception — Spiritual Functions. The ministerial exception to the application of employment-discrimination and civil rights statutes to religious institutions and their ministerial employees does not apply to all employment decisions by religious institutions, nor does it apply to all claims by ministers; it applies only to claims that involve a religious institution’s choice as to who will perform spiritual functions; termination of the employment of a ministerial employee by a religious institution is an action absolutely protected under the First Amendment, regardless of the reason for doing so. Law Office of Julie A. Gafkay, PLC (by Julie A. Gafkay), and Joliat, Tosto, McCormick & Bade, PLC (by Michael T. Joliat), for plaintiff. Foster, Swift, Collins & Smith, P.C. (by Thomas R. Meagher and Liza C. Moore), for defendants. Before: METER, P.J., and BORRELLO and SHAPIRO, JJ. SHAPIRO, J. Plaintiff, a teacher at St. Mary’s Elementary School in Mount Morris, filed this action against defendants, alleging violation of the Michigan Civil Rights Act (CRA), MCL 37.2101 et seq., and violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., after her contract was not renewed for the 2005-2006 school year. In June 2006, the trial court granted defendants’ motion for summary disposition of the WPA claim pursuant to MCR 2.116(C)(10). Defendants later moved for summary disposition of the CRA claim under MCR 2.116(C)(4), arguing that the trial court lacked subject-matter jurisdiction over that claim pursuant to the “ministerial exception.” The trial court denied that motion. In a prior interlocutory appeal, this Court held that “the ministerial exception exists in Michigan,” vacated the order denying the motion, and remanded the case to the trial court “for an analysis of, and conclusions regarding, whether [plaintiff] was a ‘ministerial’ employee.” Weishuhn v Catholic Diocese of Lansing, 279 Mich App 150, 152; 756 NW2d 483 (2008). On remand, the trial court concluded that the ministerial exception applied to plaintiff and, accordingly, dismissed her CRA claim pursuant to MCR 2.116(C)(4). Plaintiff appeals as of right, challenging the dismissal of both her WPA claim and her CRA claim. We affirm. I. BASIC FACTS AND PROCEEDINGS In Weishuhn, 279 Mich App at 153-155, this Court summarized the relevant underlying facts as follows: A. WEISHUHN’S BACKGROUND In 1992, Weishuhn obtained her Bachelor of Science degree in elementary education from the University of Michigan. For more than 10 years, until 1999, Weishuhn worked for St. Charles and Helena Catholic Church in Clio, Michigan. She was that church’s director of religious education for its “parish religious ed[ucation] program” for approximately eight years. In 2001, she obtained her master’s degree in teaching from Marygrove College. B. WEISHUHN’S EMPLOYMENT AND DUTIES AT ST. MARY’S In August 1999, Weishuhn began teaching at St. Mary’s Elementary School in Mount Morris, Michigan. Weishuhn taught mathematics for the fifth through the eighth grades and carried out religious responsibilities that included teaching religion for the sixth through the eighth grades. Initially, Weishuhn taught two mathematics classes and four religion classes each day, but she later taught four mathematics classes and three religion classes each day. And in her final year at St. Mary’s (2004-2005), she taught four mathematics classes and two religion classes each day. At her deposition, Weishuhn explained that her religious-education duties entailed teaching sixth-, seventh-, and eighth-grade religion classes. She was also responsible for planning Masses for those grades, as well as assisting a fourth-grade teacher with student liturgies. Weishuhn and the St. Mary’s pastor discussed the subject matter of the Masses. Weishuhn also prepared her seventh- and eighth-grade students for the sacrament of confirmation, and she developed reconciliation (penance) services twice a year. At her deposition, Weishuhn agreed that her responsibilities were ministerial in the sense that she provided religious direction for her students. She also testified that religion was an integral part of the school’s curriculum and her lesson plan. C. THE PROCEEDINGS BELOW After a series of employment-related incidents, none of which involved the subject of religion, St. Mary’s terminated Weishuhn’s employment in the spring of 2005. Weishuhn later filed a two-count complaint against defendants, alleging violations of the Whistleblowers’ Protection Act [MCL 15.361 et seg.] and the Civil Rights Act [MCL 37.2101 et seg.] for retaliatory termination. Defendants then moved for summary disposition pursuant to MCR 2.116(C)(10), asserting that both of Weishuhn’s claims failed as a matter of law. The trial court granted the motion with respect to the Whistle-blowers’ Protection Act claim, but it denied the motion with respect to the retaliation claim under the Civil Rights Act. In June 2006, defendants moved for summary disposition pursuant to MCR 2.116(C)(4), arguing that the trial court lacked subject-matter jurisdiction over Weishuhn’s employment-discrimination claim because of the ministerial exception. Defendants asserted that “[b]ecause [Weishuhn’s] duties while employed by St. Mary’s School included a ‘spiritual function,’ the First Amendment of the United States Constitution precludes application of the Elliott Larsen Civil Rights Act... to [her] employment relationship with St. Mary’s School.” The trial court denied defendants’ motion, ruling that there was a question of fact for the jury in terms of whether Weishuhn’s primary function was spiritual in nature. In reaching its conclusion, the trial court noted that the caselaw cited by the parties used the word “primary.” The trial court also acknowledged that there appeared to be some overlap between Weishuhn’s duties in terms of secular and spiritual teaching, and opined that “this is a case that maybe could create some new law in this area, at least maybe get some clarification as to whether or not there needs to be an analysis by the court with respect to this primary or secondary purpose.” The trial court gave effect to its ruling in a subsequent written order. The trial court also denied defendants’ motion for reconsideration of this matter. This Court then concluded that the ministerial exception exists in Michigan, vacated the order denying the motion, and remanded the case for further proceedings to determine whether plaintiff was a ministerial employee, explaining: The salient question then is whether Weishuhn was a ministerial employee. On the basis of our review de novo, we are unable to determine whether the trial court reached a conclusion on whether Weishuhn was a ministerial employee. The trial court did engage in some discussion about whether Weishuhn’s teaching functions were primarily religious in nature. But ultimately the trial court concluded that this was a fact question for the jury and therefore denied defendants’ motion for summary disposition. As we have stated above, this conclusion was erroneous. We recognize, however, that the trial court was acting at a considerable disadvantage because there was no explicit holding that the ministerial exception existed in Michigan and no guidance from Michigan appellate courts regarding how to apply that exception. We therefore remand to the trial court for an analysis of, and conclusions with regard to, whether, in light of this opinion, Weishuhn- was a ministerial employee. In this regard, the trial court shall consider the affidavits, depositions, admissions, or other documentary evidence that the parties have submitted. In undertaking that analysis and reaching these conclusions, the trial court should focus on the totality of Weishuhn’s duties and responsibilities, her position, and her functions. More specifically, the trial court should consider the following non-exhaustive list of factors: (1) Whether Weishuhn had primarily religious duties and responsibilities in the sense that her primary duties consisted of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship; (2) Whether Weishuhn’s duties had religious significance; (3) Whether Weishuhn’s position was inherently, primarily, or exclusively religious, whether that position entailed proselytizing on behalf of defendants, whether that position had a connection to defendants’ doctrinal mission, and whether that position was important to defendants’ spiritual and pastoral mission; and (4) Whether Weishuhn’s functions were essentially liturgical, that is, related to worship, and whether those functions were inextricably intertwined with defendants’ religious doctrine in the sense that Weishuhn was intimately involved in the propagation of defendants’ doctrine and the observance and conduct of defendants’ liturgy by defendants’ congregation. If, after consideration of these factors, the trial court determines that Weishuhn’s position and function were such that she was a ministerial employee, then the trial court shall enter an order dismissing Weishuhn’s discrimination claim. But if after this inquiry the trial court concludes that Weishuhn was not a ministerial employee, it should schedule further proceedings as necessary for trial. [Weishuhn, 279 Mich App at 177-179 (emphasis in original).] II. STANDARD OF REVIEW We review de novo trial court decisions on motions for summary disposition. Id. at 155. We also review de novo the trial court’s decision on the ministerial exception because this issue is a question of law. Id. at 175-176; In re Capuzzi Estate, 470 Mich 399, 402; 684 NW2d 677 (2004). Constitutional issues are also reviewed de novo on appeal. Weishuhn, 279 Mich App at 155. III. CIVIL RIGHTS ACT CLAIM With regard to the first factor the trial court was directed to consider, we find no error in the trial court’s determination that plaintiffs duties were primarily religious in nature. Plaintiff argues that the trial court ignored evidence that the majority of her classes were mathematics classes. We disagree. Although plaintiff was hired in part to teach mathematics, she also taught religion and she was actively involved in religious planning and activities. She was involved in planning student masses and helped prepare the students for confirmation and reconciliation services. Plaintiffs assertion that “the majority” of her classes were mathematics classes appears to be based solely on the number of classes taught. The argument is erroneous because it fails to consider the amount of classroom time spent on each subject as well as the additional time spent planning masses and preparing students for confirmation and reconciliation services. However, even if we agreed that the total number of classes alone should govern in this case, plaintiff has not shown that the trial court’s determination that her duties were primarily religious in nature was erroneous. Plaintiffs argument is based on the premise that teaching mathematics is secular. However, teaching “secular” classes is not necessarily “purely secular” in the context of religious schools. Coulee Catholic Sch v Labor & Indus Review Comm, 2009 WI 88, ¶¶ 52-55; 320 Wis 2d 275, 307-309; 768 NW2d 868 (2009). This is particularly true in this case where plaintiff stated that she incorporated her religious teachings into her mathematics lessons. In an interview that plaintiff gave to The Catholic Times, she explained that her students “hear me talk about God and religion in math class as much as I do in religion class. I’m not the kind of person who separates religion — it’s part of who I am and what I teach .... My ultimate goal is to help each student develop into a young Christian person who has a conscience.” [Lisa Briggs, Teacher’s plan is simple: Lessons for a lifetime, The Catholic Times, April 30-May 6, 2005, p 8.] Therefore, we find no error in the trial court’s conclusion that plaintiffs duties were primarily religious, notwithstanding the fact that she taught four mathematics and two religion classes in her last year of teaching. With regard to the second factor, plaintiffs teaching of religion classes and her involvement in planning masses and preparing students for confirmation and reconciliation services clearly have religious significance. Further, plaintiffs admission that she incorporated her religious teachings into her mathematics classes indicates all aspects of her work had religious significance. Thus, we agree with the trial court that this factor also weighs in favor of finding that plaintiff was a ministerial employee. In its analysis of the third factor, the trial court found that plaintiffs position was primarily religious because, as a teacher of religion, she was involved in proselytizing on behalf of the church. We agree. As the trial court noted, educating and indoctrinating the children was important to and furthered the purposes of the church. Thus, plaintiffs involvement in planning masses and preparing students for confirmation and reconciliation services were connected to defendants’ doctrinal mission, and these activities were important to defendants’ spiritual and pastoral mission. Moreover, plaintiff admitted in her interview with The Catholic Times that even in her math classes, she did not separate religion and that it was part of her mission to promote and reinforce Christian ideals. The fourth factor presents a closer question, given that plaintiff did not assume a liturgical role within the entire congregation. Still, she was intimately involved in liturgical planning of worship services, as well as confirmation and reconciliation services, for students. Further, her role as a religion teacher involved propagation of defendants’ doctrine to students, which included guidance in worship services and rituals. We conclude that, in light of this record, the trial court did not err by determining that consideration of the foregoing factors established that plaintiff was a ministerial employee. Plaintiff argues that the facts in this case more closely resemble those in cases cited in Weishuhn that found the ministerial exception did not apply to teachers. This argument misconstrues the Court’s discussion of those opinions in Weishuhn. This Court cited cases such as Redhead v Conference of Seventh-Day Adventists, 440 F Supp 2d 211, 220-222 (ED NY, 2006), and Guinan v Roman Catholic Archdiocese of Indianapolis, 42 F Supp 2d 849, 853 (SD Ind, 1998), and noted that these courts “have ruled that the ministerial exception did not apply to teachers.” Weishuhn, 279 Mich App at 164-165. However, this Court also reviewed cases in which the contrary view was followed. Id. at 163-164. The Court ruled that the ministerial exception could apply to the plaintiff depending upon the documentary evidence, id. at 178-179, and rejected the position that the ministerial exception is inapplicable to teachers. Instead, the Court opted for a broader totality of the circumstances test. Id. To the extent that plaintiff is requesting we reconsider that determination, we must decline. Under the law of the case, we are bound by Weishuhn. Sinicropi v Mazurek, 279 Mich App 455, 465; 760 NW2d 520 (2008). For these reasons, the trial court did not err by finding that plaintiff was a ministerial employee and that defendants were therefore entitled to summary disposi