Whistleblower Cases

HECKMANN v DETROIT CHIEF OF POLICE Docket No. 260115. Submitted June 14,2005, at Detroit. Decided July 26, 2005, at 9:05 a.m. Eric C. Heckmann brought an action in the Wayne Circuit Court against the Detroit Chief of Police and others, alleging a violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., and intentional infliction of emotional distress relating to his treatment as an employee of the police department after he sent a letter to the police chief and the mayor of Detroit detailing allegations of financial mismanagement in the police department. The court, John H. Gillis, Jr., J., granted summary disposition for the defendants, ruling that the WPA claim is precluded because the plaintiff failed to exhaust administrative remedies available through grievance procedures provided under a collective bargaining agreement, and that the plaintiff failed to establish the existence of a genuine issue of material fact concerning outrageous and extreme conduct to avoid summary dismissal of the claim of intentional infliction of emotional distress. The plaintiff appealed. The Court of Appeals held-. 1. The circuit court erred by ruling that the plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his rights under the WPA. The plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of remedies to the WPA claim would frustrate the purpose of the act, particularly when the act provides that relief must be sought within ninety days after the occurrence of the alleged violation of the act. That span obviates the possibility of the exhaustion of administrative remedies. 2. The circuit court erred as a matter of law by ruling that the plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim. The allegation that a supervisor told the plaintiff to start looking for a job elsewhere if he kept “making waves” and wasting the supervisor’s time, and evidence supporting that allegation, support the inference that the supervisor-defendant threatened the plaintiff with discharge in retaliation for his letter. MCL 15.362 provides that an employer shall not threaten or otherwise discriminate against an employee for protected activities. Material questions of fact exist regarding whether the comment was made by the supervisor, whether it was a threat of discharge, and whether it was causally related to the plaintiffs letter. Summary disposition was inappropriate. 3. Ostracism or social isolation is not the sort of conduct that rises to the level of an adverse employment action barred by the WPA. In this case, the plaintiff communicated regularly with his supervisor and maintained working relationships with his supervisor and coworkers. These negate the allegation related to ostracism and social isolation. 4. To the extent that the WPA requires that a whistleblower report to a public body other than the whistleblower’s employer, the plaintiff satisfied the requirement by sending a copy of his letter to the mayor. 5. The circuit court properly dismissed the claim for the intentional infliction of emotional distress. Reasonable minds could not differ and would conclude that the defendants’ alleged conduct that formed the basis of the plaintiffs claim was not outrageous. Affirmed in part, reversed in part, order of summary disposition for the defendants vacated, and case remanded for further proceedings. 1. Master and Servant — Whistleblowers’ Protection Act — Exhaustion of Administrative Remedies. The Whistleblowers’ Protection Act does not require that administrative remedies be exhausted before relief is sought under the act (MCL 15.361 et seq.). 2. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Adverse Employment Actions. A threat of discharge from employment following an employee’s report of a violation or suspected violation of law may support a claim by the employee that the employer threatened the employee in violation of the Whistleblowers’ Protection Act (MCL 15.362). 3. Master and Servant — Whistleblowers’ Protection Act — Protected Activities — Ostracism — Social Isolation. Ostracism and social isolation are not the sorts of conduct that rise to the level of an adverse employment action barred by the Whistleblowers’ Protection Act (MCL 15.362). 4. Master and Servant — Whistleblowers’ Protection Act — Public Body. The Whistleblowers’ Protection Act requires that a whistleblower report to a public body; where an employee of a city’s police department sends a report to the city’s mayor, the requirement of reporting to a public body is satisfied (MCL 15.361 et seq.). Stefani & Stefani, P.C. (by Michael L. Stefani and Frankie J. Rivers), for the plaintiff. Andrew R. Jarvis, Senior Assistant Corporation Counsel, for the defendants. Before: SAWYER, P.J., and MARKEY and MURRAY, JJ. Per Curiam. Plaintiff Eric Heckmann is a civilian employee of the fiscal operations section (FOS) of the Detroit Police Department. On September 11,2002, plaintiff wrote a five-page letter to the then newly appointed chief of police detailing allegations of gross mismanagement and fraud within the department, including the hiring of unnecessary employees who performed no meaningfiil work, misuse of overtime, falsification of time records, misuse of government properly, and premature payments of invoices. Plaintiff claims that as a result of this letter, defendants threatened or otherwise discriminated against him in violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq. Plaintiff sued and also alleged in a second count that defendants intentionally inflicted emotional distress. The trial court granted defendants’ motion for summary disposition, and plaintiff appeals by right. Because we find that plaintiff pleaded and factually supported some of his WPA claims, we reverse in part, affirm in part, and remand for further proceedings in the trial court. I. SUMMARY OF FACTS AND PROCEEDINGS Plaintiff is a longtime city of Detroit employee who has worked for the city’s police department since 1992. In 2002, plaintiff was a principal accountant in the department’s FOS. Plaintiff claims that in August 2002, he sent a memorandum to Deputy Chief Brenda Goss Andrews, supervisor of the department’s management services bureau, requesting a meeting to discuss his observations of financial misconduct within the FOS. Upon receiving no response from Andrews, plaintiff sent his September 2002 letter to newly appointed chief of police, Jerry Oliver. Plaintiff also forwarded a copy of the letter to Detroit Mayor Kwame Kilpatrick and to the president of the Association of Professional and Technical Employees, a union in which plaintiff was a member. Plaintiff acknowledged that beginning in January 2003 the union had initiated approximately five grievance procedures on his behalf. Plaintiff asserts that he did not receive a response to his September 2002 letter until being called to a meeting in Andrews’s office on April 8, 2003. Defendants Marlene Hobbs and Hasumati Patel, the manager of the FOS also attended. After Patel’s appointment in January 2003, plaintiff initiated the first of his grievances, which alleged that Patel had been appointed to her position contrary to the union contract and the city’s own rules regarding promotional opportunities. Plaintiff also had criticized Hobbs in his September 2002 letter, but Hobbs was promoted in April 2003 to the position of head governmental analyst in charge of the accounts payable unit of the FOS. Plaintiff claims that, during the April meeting, Andrews discussed his September 2002 letter and that Andrews told plaintiff that he should “start looking for a job elsewhere” if he kept “making waves” and forcing Andrews to waste her time. Plaintiff asserts that Andrews’s comment to him at the April meeting was a “threat” within the meaning of MCL 15.362. Plaintiff further alleges that after the April meeting, defendants “otherwise discriminated” against him by reducing his duties and socially isolating him. With respect to the former claim, plaintiff testified that Patel authored a memorandum on April 10, 2003, outlining the respective work assignments of various FOS personnel. According to plaintiff, although others were assigned ten or more duties, he was assigned only four. Plaintiff acknowledged, however, that his four assigned responsibilities entailed accounting for approximately $65 million to $80 million. Regarding social isolation, plaintiff testified that his supervisors would ignore him but make a point of saying hello to every other person in the office. But plaintiff acknowledged that he had a working relationship with Patel, with whom he communicated regularly by e-mail. Plaintiff also admitted that no acrimony existed between him and his coworkers, with whom he also maintained a working relationship. In moving for summary disposition, defendants argued that plaintiff’s September 2002 letter was not a “report” within the meaning of the WPA because it was not made to an outside agency; rather, it was merely an intra-agency complaint sent up the normal chain of command. Defendants also argued that plaintiff had not suffered an adverse employment, action because he had not been fired, demoted, or transferred to a different job; plaintiff retained the same job classification he had held, albeit with some altered job assignments. Defendants further noted that although plaintiff was a union member, he had not initiated a grievance regarding his WPA claims. In opposing defendants’ motion for summary disposition, plaintiff alleged that he was passed over for promotion in January 2003 when the position of supervisor was filled without being posted or through other normal procedures. Plaintiff also pointed to his claim that in April 2003 Andrews told him to start looking for another job if he continued to “make waves.” Plaintiff also argued that his duties had been significantly reduced and that being ignored had created hostility. In granting defendants summary disposition, the trial court stated: Okay, in this case the Plaintiff is a member of a union and subject to a collective bargaining agreement and has not exhausted his administrative remedies. Secondly, he was not fired. He was not demoted. He was not transferred. Because he didn’t get a promotion is not the basis for [a] cause of action. The motion is granted on all counts. On appeal, plaintiff challenges the trial court’s ruling that dismissal of the WPA claim was proper because plaintiff had not suffered an adverse employment action for the purposes of the act and had failed to exhaust union remedies, and that, in fact, he should have received summary disposition on that claim because he established without rebuttal a prima facie case. Plaintiff further asserts that he established the existence of a genuine issue of material fact concerning whether he had suffered outrageous and extreme conduct for the purposes of his emotional distress claim. Plaintiff additionally argues that defendants were not entitled to summary disposition because they failed to comply with the rules of discovery. II. STANDARD OF REVIEW We review de novo a trial court’s decision on a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion for summary disposition brought under MCR 2.116(C)(10) tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3)(b); Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The trial court and this Court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West, supra at 183. We also review de novo questions of law, including statutory construction. Anzaldua v Band, 457 Mich 530; 578 NW2d 306 (1998). III. WPA ANALYSIS A. EXHAUSTION OF ADMINISTRATIVE REMEDIES We first hold that the trial court erred as a matter of law by applying the doctrine of exhaustion of administrative remedies to plaintiffs statutory WPA claim. Plaintiffs administrative remedies are separate and distinct from his rights and remedies under the WPA. To apply the doctrine of exhaustion of administrative remedies would frustrate the purpose of the statute, particularly when the statute provides that relief must be sought “within 90 days after the occurrence of the alleged violation of [the] act” or be lost. MCL 15.363(1). We are guided by the following principles of statutory construction set forth by our Supreme Court in Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 611; 566 NW2d 571 (1997): The cardinal rule of all statutory construction is to identify and give effect to the intent of the Legislature. The first step in discerning intent is to examine the language of the statute in question. We read the language according to its ordinary and generally accepted meaning. Judicial construction is authorized only where it lends itself to more than one interpretation. We also consider that remedial statutes, such as the Whistleblowers’ Protection Act, are to be liberally construed, favoring the persons the Legislature intended to benefit. [Citations omitted.] Nowhere in the statute has the Legislature either expressly or impliedly limited its protection to whistle-blowers who have exhausted other possible remedies, whether those possible remedies are statutory, contractual, or administrative. Indeed, when the WPA duplicates possible common-law remedies, the statute provides the exclusive remedy. Dudewicz v Norris Schmid, Inc, 443 Mich 68, 78-79; 503 NW2d 645 (1993). The purpose of the statute is “to alleviate . . . the inability to combat corruption or criminally irresponsible behavior in the conduct of government or large businesses,” id. at 75, by removing the barrier of fear of retribution that prevents employees in the best position to report corruption from reporting it, Shallal, supra at 612. We thus further the purpose of the WPA of protecting whistleblowers by not reading into the statute limitations the Legislature did not express. Our reading of the statute is also consistent with prior case law applying the WPA and comparable employment discrimination statutes. See, e.g., Shallal, supra at 617, quoting Rouse v Farmers State Bank of Jewell, Iowa, 866 F Supp 1191, 1204 (ND Iowa, 1994) (“ ‘ [W]histleblower statute[s] [are] analogous to antiretaliation provisions of other employment discrimination statutes and . . . the policies underlying these similar statutes warrant parallel treatment. . . .’ ”)• See also Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 280; 608 NW2d 525 (2000) (the WPA bears substantial similarities to Michigan’s civil rights statutes). This Court first addressed the WPA in Hopkins v Midland, 158 Mich App 361; 404 NW2d 744 (1987). At issue in Hopkins was whether a union grievance resulting in an arbitration decision in favor of the employer barred the plaintiffs subsequent WPA action. The Court held “that [the] plaintiffs failure to submit [his WPA] claims to arbitration does not act as res judicata or collateral estoppel....” Id. at 366. The Hopkins Court reasoned that the rights and remedies accorded by the WPA are different from those of a collective bargaining agreement, noting that “the act creates rights belonging to individual employees, not collectively represented groups.” Id. at 374-375. Consequently, “the arbitration proceeding [in Hopkins] was brought by [the] plaintiffs union, as is the usual case, to assert rights created under a collective bargaining agreement.” Id. at 375. But, “a civil action may be required to achieve the act’s goals.” Id. This Court reviewed Hopkins when faced with the question whether a whistleblower who reports a violation of the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq., must bring the retaliation claim under MIOSHA. Tyrna v Adamo, Inc, 159 Mich App 592, 600; 407 NW2d 47 (1987). The Tyrna Court determined that the whistleblower did not have to do so and held “that an employee who reports a public health or safety violation to appropriate local authorities may maintain an action under the whistle-blowers’ act notwithstanding the fact that the employer’s wrongful conduct also violates MIOSHA.” Id. at 594. Although MIOSHA provides its own antiretaliation provision, the Tyrna panel reasoned that the WPA had broader application and provided a wider panoply of legal and injunctive remedies. Tyrna, supra at 598-600. Because the Court found no conflict between MIOSHA and the WPA, the Court held that, without further legislative direction, the plaintiff could pursue his claim under either statute. Tyrna, supra at 600-601. This Court applied similar reasoning in concluding that a settlement of a union grievance filed on behalf of a discharged employee did not bar an action alleging wrongful termination under the Persons With Disabilities Civil Rights Act (formerly the Handicappers’ Civil Rights Act), MCL 37.1101 et seq., and the Civil Rights Act (CRA), MCL 37.2101 et seq. Florence v Dep’t of Social Services, 215 Mich App 211, 216-217; 544 NW2d 723 (1996). The Court observed that a union has a duty to speak for its members with respect to the terms of a collective bargaining agreement, but a union does not have a similar duty to uphold rights its members possess independently of the collective bargaining agreement. Id. at 214. The Court held that because the employee’s contractual rights and statutory rights were distinctly separate, the employee had a right to proceed on her statutory claims regardless of the agreement that her union reached with respect to the contractual grievance. Id. at 214-216. In sum, we hold that the trial court erred by ruling that plaintiff must have exhausted his administrative remedies, that is, by the filing of a union grievance, before he could invoke his statutory WPA rights. Our conclusion is consistent with the WPA’s requirement that claims be brought promptly or not at all, with the statute’s lack of any express or implied requirement for exhaustion of administrative remedies, and with a construction of the WPA “favoring the persons the Legislature intended to benefit.” Shallal, supra at 611. B. ADVERSE EMPLOYMENT ACTION We also hold that the trial court erred as a matter of law by implicitly ruling that plaintiff must show that he was fired, demoted, or transferred in order to state a viable WPA claim and that other bases, such as not getting a promotion or being threatened with employment action including discharge, were not sufficient. Plaintiff alleged, and supported by his deposition testimony, that Andrews referenced his September 2002 letter to the chief of police and told him to start looking for a job elsewhere if he kept “making waves” and wasting Andrews’s time. Viewed in the light most favorable to plaintiff, this allegation and evidence support inferences that defendant Andrews threatened plaintiff with discharge in retaliation for his September letter. MCL 15.362 provides: An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee’s compensation, terms, conditions, location, or privileges of employment because the employee, or a person acting on behalf of the employ

Ruth Service vs. Newburyport Housing Authority. No. 04-P-296. Essex. December 7, 2004. April 15, 2005. Present: Armstrong, C.J., Brown, & Berry, JJ. Employment, Termination. Housing Authority. Civil Service, Termination of employment. Public Employment, Termination. Public Policy. A Superior Court judge properly granted summary judgment in favor of an employer on a terminated employee’s claim of a violation of G. L. 149, § 185, the Massachusetts public employee whistleblower statute, where the personnel policy that the employee claimed her supervisor contravened did not constitute a rule or regulation promulgated pursuant to law, and where there could be no reasonable determination that the supervisor’s conduct placed the public health or safety at risk. [282-284] Civil action commenced in the Superior Court Department on October 18, 2002. The case was heard by David A. Lowy, J., on a motion for summary judgment. Joseph G. Sandulli for the plaintiff. Peter J. McQuillan for the defendant. Brown, J. The plaintiff, Ruth Service, was an employee of the Newburyport Housing Authority (authority) for almost fifteen years. Prior to her termination, she was employed as the authority’s rental assistance and systems administrator. Service was terminated by the authority for making false statements against the executive director of the housing authority, Robert Cox. Upon termination, Service sought and received a hearing pursuant to G. L. c. 31, § 41. The hearing officer held that the termination complied with the personnel policy of the authority. Service then instituted an action in Superior Court against the authority pursuant to G. L. c. 149, § 185, the Massachusetts public employee whistleblower statute (whistleblower statute). She now appeals from a summary judgment in favor of the defendant. 1. Background. We review the record on summary judgment in the light most favorable to the plaintiff. See Costa v. Boston Red Sox Baseball Club, 61 Mass. App. Ct. 299, 300 (2004), and cases cited. On March 6, 2002, Cox allegedly used profane language in a private meeting with an individual on the custodial staff, in violation of the authority’s personnel policy. Service was not present at the meeting, nor was she present in the office at the time of the meeting. Her complaint alleged that this incident left the office staff shaken and upset. On May 2, 2002, Service set up a staff meeting with Cox about the incident. The staff meeting occurred on May 8, 2002. At this staff meeting, Service disclosed to all present that the board of commissioners of the authority, in an executive session of its regular meeting, had not taken any action against Cox for the incident in question. On May 7, 2002, five days after the staff meeting, Cox gave Service a letter suspending her for two days. He stated in the letter that she was not suspended for possessing the information regarding what had occurred at the executive session, but rather for disclosing the information in a manner meant to humiliate him, and to “cast [him] in a negative light, threaten [him] and/or intimidate [him] in front of the staff.” When she received her suspension notice, Service called her husband and told him that she had been suspended. She stated that Cox was outside her office and that she was afraid to leave as he was blocking her way. Cox heard the conversation. It was the content of this conversation that caused Cox to terminate Service, as set forth in the termination notice to Service, where Cox stated, “[y]ou fabricated a situation whereby you began accusing me of preventing you from leaving the office. This is a potentially criminal accusation you knew to be untrue and false. Your conduct was outrageous, unprofessional and indicates you are unable to perform your job duties in a professional manner.” After a hearing pursuant to G. L. c. 31, § 41, Service’s termination was upheld. In a written decision, the hearing officer stated that she found “Mr. Cox’s statements to be credible and Ms. Service not to be credible. To falsely accuse her supervisor of preventing her from leaving the office is extremely unprofessional and unethical, and warrants termination. ... I find that the termination of Ms. Service was done in compliance with [G. L. c. 31, § 41,] and the [authority] personnel policy. I find that the termination warranted by the facts as presented. I therefore uphold the decision to terminate Ms. Service’s employment effective May 14, 2002.” Service then opted not to pursue her rights pursuant to G. L. c. 31, §§ 41-45, and instead filed this action pursuant to G. L. c. 149, § 185(d) and (f). 2. Discussion. In her complaint, Service alleged that Cox’s profane language contravened the personnel policies of the authority, that her termination after calling to Cox’s attention his violation of those policies was in retaliation for her objection, and that her termination thus violated the whistleblower statute. “We are constrained to follow the plain language of a statute when its language is plain and unambiguous and its application would not lead to an absurd result, or contravene the Legislature’s clear intent.” Johnson Lumber Co. v. Woodscape Homes, Inc., 51 Mass. App. Ct. 323, 325 (2001), quoting from Commissioner of Rev. v. Cargill, Inc., 429 Mass. 79, 82 (1999). See Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534, 537 (1992) (“It is a well-established canon of construction that, where the statutory language is clear, the courts must impart to the language its plain and ordinary meaning”). The pertinent language of G. L. c. 149, § 185, that Service relies upon in support of her argument is as follows: “(b) An employer[] shall not take any retaliatory action against an employee because the employee does any of the following: “(3) Objects to, or refuses to participate in any activity, policy or practice which the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” Service argues that the protections offered to public employees by the whistleblower statute are broader than the common-law protections to at-will employees. See Shea v. Emmanuel College, 425 Mass. 761 (1997) (at-will employee entitled to protection for “whistleblowing” where she reported criminal conduct to superiors). Contrast Mistishen v. Falcone Piano Co. Inc., 36 Mass. App. Ct. 243, 245-246 (1994) (at-will employee not entitled to “whistleblowing” protections for reporting employer violations of G. L. c. 93A). Despite Service’s argument to the contrary, the common-law protections afforded to a whistleblower are instructive on the breadth of the statute. As in Shea v. Emmanuel College, supra at 762-763, “[t]he distinction of importance is between a discharge for an employee’s internal complaint about company policies or the violation of company rules, for which liability may not be imposed, and an internal complaint made about the alleged violation of the criminal law for which we now decide that liability may be imposed.” General Laws c. 149, § 185(b)(3), provides protection not just for reporting a violation of the criminal law, but also for the reporting of a “violation of a law, or a rule or regulation promulgated pursuant to law, or which the employee reasonably believes poses a risk to public health, safety or the environment.” A judge of the Superior Court entered judgment for the authority. We agree and affirm the judgment. a. Personnel policy as a rule or regulation of the authority. The authority conceded that the alleged conduct would be grounds for an action against it, if the public employee whistle-blower statute applied. However, the alleged facts, even if true, do not place Service’s conduct and resulting termination within the protections afforded by the statute. Service argues that the authority’s personnel policy expressly prohibited the profane language used by Cox in the meeting with another employee. The pertinent personnel policy provision states: “Staff are not at any time to use abusive or sexist language, nor engage in inappropriate joking relationships with unwilling individuals. Violation of any of the above will result in disciplinary action. Comments of a sexual or derogatory manner will not be tolerated and are potential grounds for termination as they are disrespectful and create an improper professional environment.” Service asserts that the personnel policy is a rule of the authority that is promulgated pursuant to the authority’s statutory authority to promulgate rules and regulations. Thus, when Service objected to Cox’s use of profane language, she objected to a behavior that she reasonably believed violated that rule. She points to G. L. c. 121B, § ll(ra), in support of her argument that the authority has the statutory authority to promulgate rules and regulations. Section 11 (m), as amended by St. 1984, c. 189, § 97, provides that the authority may “make, and from time to time amend or repeal, subject to the approval of the [Department of Housing and Community Development], by-laws, rules and regulations, not inconsistent with pertinent rules and regulations of the department to govern its proceedings and effectuate the purposes of this chapter.” Service points to nothing more than this provision to support her argument. There is nothing in the personnel policy manual that would tend to demonstrate that it was promulgated in accordance with this statute. Simply because the authority has the power to promulgate regulations does not render a personnel policy manual such a rule or regulation. Compare Tinkham v. Department of Pub. Welfare, 11 Mass. App. Ct. 505, 514 (1981). Service’s argument fails as matter of law because the manual could not reasonably be construed as a “rule or regulation promulgated pursuant to law.” b. Conduct not a risk to public health or safety. Service argues in the alternative that Cox’s behavior in the private meeting with the maintenance employee posed a risk to the public health and safety. She points to her answers to interrogatories to establish that she reasonably believed that Cox’s “words and actions were a threat to the physical health and an impairment of the mental health of all who heard him and all who learned of what he said and did; . . . Cox’s words and actions were a present and continuing threat to the safety of all who heard him and all who learned of what he said and did.” Public health is defined as “[t]he health of the community at large . . . [t]he healthful or sanitary condition of the general body of people or the community en masse; especially] the methods of maintaining the health of the community, as by preventive medicine and organized care for the sick.” Black’s Law Dictionary 737 (8th ed. 2004). Similarly, public safety is defined as “[t]he welfare and protection of the general public, usu[ally] expressed as a governmental responsibility.” Id. at 1268. Service’s argument here fails, as she urges the court to adopt an interpretation of G. L. c. 149, § 185, that conflicts with the plain and ordinary meaning of the whistleblower statute. Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. at 537. Her argument proceeds along the path that an office dispute may be interpreted as detrimental to the public health as it upset the individuals who were in a position to overhear the dispute. There is nothing here that lends itself to a reasonable determination that the alleged behavior placed the public health or safety at risk. Judgment affirmed. Among other things, § 41 of the civil service law, G. L. c. 31, entitles an employee to a hearing before a hearing officer designated by the appointing authority concerning the reason or reasons for the discharge. Among other things, G. L. c. 149, § 185(4), provides for the filing of claims in Superior Court and for a two-year statute of limitations. Section 185(f) of G. L. c. 149, as inserted by St. 1993, c. 471, provides: “Nothing in this section shall be deemed to diminish the rights, privileges or remedies of any employee under any other federal or state law or regulation, or under any collective bargaining agreement or employment contract; except that the institution of a private action in accordance with subsection (d) shall be deemed a waiver by the plaintiff of the rights and remedies available to him, for the actions of the employer, under any other contract, collective bargaining agreement, state law, rule or regulation, or under common law.” An employer is defined as “the Commonwealth, and its agencies or political subdivisions, including, but not limited to, cities, towns, counties and regional school districts, or any authority, commission, board or instrumentality thereof.” G. L. c. 149, § 185(a)(2). As we conclude that Service’s conduct is not protected by the whistle-blower statute, we have no occasion to reach any of the various other arguments presented by the parties regarding different elements required by the statute. The plaintiff’s argument is unusual in our employment law cases. A review of the relevant case law establishes that most individuals who have sought damages for wrongful termination have asserted that a personnel policy manual is an employment contract that is enforceable. See, e.g., Jackson v. Action for Boston Community Dev., Inc., 403 Mass. 8, 13 (1988) (“on proper proof, a personnel manual can be shown to form the basis of an express or an implied contract”); Ferguson v. Host Intl. Inc., 53 Mass. App. Ct. 96, 103 (2001). In addition, G. L. c. 121B, § 26, which enumerates the powers of a housing authority, establishes that the authority must enforce the rules and regulations of the Department of Housing and Community Development. All other powers of a housing authority relate to the purchase and development of land and housing within the community. Service waived any claim that Cox’s behavior posed a risk to the environment in both her opposition to the motion for summary judgment and in her answers to interrogatories. Nor is there occasion (particularly absent a claim by Service) to consider application of the rule that a public employer, like the authority, may not discharge an employee on a basis that infringes the latter’s constitutionally protected interest in free speech. See Pereira v. Commissioner of Social Servs., 432 Mass. 251, 256 (2000).

Ruthlyn Commodore vs. Genesis Health Ventures, Inc., & another. No. 03-P-1623. Suffolk. November 10, 2004. March 2, 2005. Present: Beck, Celinas, & Kafker, JJ. Further appellate review granted, 445 Mass. 1101 (2005). Anti-Discrimination Law, Termination of employment. Nursing Home. Department of Public Health. Contract, Employment. Health Care Facility. Public Health, Health care facility. Joint and Several Obligation. In an action for unlawful employment termination brought by a high-level employee against the owner and licensee of a nursing home as well as the independent company with which the nursing home owner contracted to provide health care services at that facility, the judge erred in granting summary judgment to the defendant nursing home owner on the plaintiff’s employment discrimination claim under G. L. c. 151B, where a genuine issue of material fact existed as to the nursing home owner’s status as a joint employer with the health care services provider, given the nursing home owner’s contract rights, the ambiguities in the contract, the nondelegable responsibilities set by the relevant Department of Public Health regulation, the gaps in the record, and the fact-sensitive nature of the joint employer determination [61-65]; further, this court remanded for consideration on a fuller record the issue whether the plaintiff’s equal rights claim under G. L. c. 93, § 102, was barred by the G. L. c. 151B claim [65]. This court concluded that the definition of health care facility set out in G. L. c. 149, § 187(a), encompassed the licensee of a health care facility for purposes of determining violations of G. L. c. 149, § 187(b), the health care whistleblower statute (whistleblower statute) [65-67], and that the requirement that the licensee be jointly and severally responsible for the direction of personnel and the establishment of policies, practices, and procedures that encourage good patient or resident care, included oversight responsibility for violations of the whistleblower statute and was nondelegable. [67] Civil action commenced in the Superior Court Department on December 21, 2000. The case was heard by Peter W. Agnes, Jr., J., on a motion for summary judgment. Paul F. Wood for the plaintiff. A. Lauren Carpenter for the defendants. Doing business as Genesis ElderCare. Omega, Inc., doing business as Center for Optimum Care-Winthrop. Kafker, J. The plaintiff, Ruthlyn Commodore, is a black woman of West Indian origin who alleged that she was unlawfully terminated from her position as director of nursing at the Center for Optimum Care-Winthrop (COC-Winthrop), a nursing home, (1) because of her race, color, and national origin; (2) in retaliation for complaining about unlawful discrimination against herself and other employees; and (3) for objecting to new patient admissions and inadequate staffing that, she said, endangered care and safety at the home. Commodore sought relief under the antidiscrimination statutes, G. L. c. 151B and G. L. c. 93, § 102, and the health care whistleblower statute, G. L. c. 149, § 187. She brought her action against the owner and licensee of the nursing home, Omega, Inc. (Omega), and Genesis Health Ventures, Inc. (Genesis), an independent company selected to provide health care services at the facility. The trial court judge granted Commodore’s motion to dismiss Genesis from her action because Genesis was involved in proceedings under Chapter 11 of the Bankruptcy Act. Thereafter, Omega filed a motion for judgment on the pleadings under Mass.R.Civ.P. 12(c), 365 Mass. 765 (1974), on the ground that Omega was not the employer of Commodore or the other employees at COC-Winthrop. Omega based its motion primarily on the management agreement between Omega and Genesis, which Omega had attached to its answer. Commodore opposed the motion, and requested that, if the judge converted the motion into a motion for summary judgment under Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974), he allow her to engage in further discovery to establish that Omega was her employer. At a hearing held five months later, Omega urged the judge to convert the motion for judgment on the pleadings to one for summary judgment. The judge allowed the summary judgment motion four months after that hearing. Commodore then filed a motion under Mass.R.Civ.P. 59(e), 365 Mass. 828 (1974), to alter or amend the judgment, claiming that she had not been given notice of the conversion or a reasonable opportunity to present evidence. The judge denied that motion. Commodore contends on appeal that (1) the conversion of the rule 12(c) motion into a rule 56(b) motion was improper; and (2) even if it were proper, she had raised a genuine issue of material fact regarding whether Omega was her joint employer. We reverse the judge’s decision allowing the motion for summary judgment. Background. Omega owned and was licensed to operate nursing homes in the Commonwealth. Omega entered into an agreement with Genesis, a Pennsylvania-based health care management corporation, to manage COC-Winthrop and other health care facilities. According to the management agreement, the “Manager,” Genesis, would “select, employ and compensate as an operating expense ... a licensed Facility Administrator and a Director of Nursing for the Facilities.” The administrator and director of nursing would be employees of Genesis, but provide services exclusively to COC-Winthrop and other facilities owned and licensed by Omega and managed by Genesis. The agreement also provided that Genesis would “[hjire, as employees of [Genesis], and discharge, maintain, supervise, and reheve from its employ (as may be necessary in [Genesis’s] discretion) an adequate staff of nurses.” The agreement further provided that Genesis would establish employee benefits and “all personnel policies and procedures,” including “rates of compensation,” “hours of employment,” and “job classifications.” Genesis would also “cause compliance with ah apphcable governmental laws and regulations, specifically including the regulations pertaining to . . . non-discrimination.” The management agreement required the “Owner,” Omega, to provide money to pay for capital and operating expenses, including funding the payroll account. Omega was to be consulted by Genesis on a monthly basis about operational decisions affecting the facility. Omega also had the right to inspect the facihty on twenty-four hours’ notice. The agreement further stated that “[Omega] shall perform those obligations and responsibilities which must be performed by the party hcensed to operate the [facilities.” As the hcensee of the nursing home, Omega was required by the agreement and Department of Pubhc Health regulations to “be responsible for compliance with all applicable laws and regulations of legally authorized agencies.” 105 Code Mass. Regs. § 150.002(A)(2) (1994). In addition, the regulations provide that the licensee “shall be responsible for procurement of competent personnel, and the hcensee and the administrator shall be jointly and severally responsible for the direction of such personnel and for establishing and maintaining current written personnel policies, and personnel practices and procedures that encourage good patient or resident care.” 105 Code Mass. Regs. § 150.002(D) (1994). Commodore began working at COC-Winthrop in August, 1999, as the director of nursing. She alleged in her amended complaint that, despite her superior performance, she and “other black, African and West Indian employees of COC-Winthrop/ Genesis [were] treated differently on account of [their] race, color, and national origin.” She alleged that white employees at COC-Winthrop were paid at a higher rate than their black colleagues and disciplined less harshly than black employees for similar conduct. She alleged that she complained to the “COC Winthrop/Genesis” administrator about the discrimination in July, 2000. In May, 2000, another Omega-owned and Genesis-managed facility closed, and its patients were transferred to COC-Winthrop. Commodore alleged that her complaints to COC-Winthrop/Genesis administrators and Genesis managers about understaffing and patient overcrowding resulting from the transfer — in addition to unlawful discrimination — eventually led to the termination of her employment in August, 2000. Standard of review. “[A] party moving for summary judgment in a case in which the opposing party [has] the burden of proof at trial is entitled to summary judgment if he demonstrates, by reference to material described in Mass.R.Civ.P. 56(c), unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). 1. Joint employer status under G. L. c. 151B. a. It is unlawful for an “employer” or his or her agent to discriminate against an individual because of race or national origin or to retaliate against an individual for objecting to such discrimination. G. L. c. 151B, § 4(1) & (4). It is also unlawful for any person “to aid, abet, incite, compel, or coerce” such discrimination. G. L. c. 151B, § 4(5), as amended by St. 1989, c. 272, § 14. Commodore alleges (1) that there was enough evidence to create a triable issue of fact on her claim that Omega — together with Genesis — was her joint employer; and (2) that, if she established a genuine issue of material fact regarding Omega’s status as a joint employer, then the judge improperly allowed summary judgment on her G. L. c. 151B claim, as well as on her G. L. c. 93, § 102, and G. L. c. 149, § 187, claims. The seminal decision on joint employment is Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964), a case involving a bus company that had contracted with a maintenance company to service its terminals. The Supreme Court defined the concept of a “joint-employer” as a company possessing “sufficient control over the work of the employees” of another company. The Court described the joint employer determination as “essentially a factual issue.” Ibid. “The basis of [a joint employer] finding is simply that one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 993 n.4 (6th Cir. 1997), quoting from NLRB v. Browning-Ferris Indus. of Pa., Inc., 691 F.2d 1117, 1123 (3rd Cir. 1982). See Schlei & Grossman, Employment Discrimination Law 1312 (3d ed. 1996). Since Boire, Federal courts have applied joint employer principles to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., and to the Age Discrimination Employment Act of 1967, 29 U.S.C. §§ 621 et seq. Swallows, supra. The Massachusetts Commission Against Discrimination and the Commonwealth’s trial courts have also applied joint employer analysis in G. L. c. 151B cases. Here, we do the same. b. Commodore argues that the requirements imposed on the licensee by 105 Code Mass. Regs. 150.002 (A)(2) and (D) were sufficient to raise a genuine issue of fact regarding Omega’s status as a joint employer. In heavily regulated environments, issues of joint employment are particularly complicated. As we noted earlier, the Department of Public Health regulation, 105 Code Mass. Regs. § 150.002(D), states, in relevant part, that the licensee “shall be responsible for procurement of competent personnel, and the licensee and the administrator shall be jointly and severally responsible for the direction of such personnel and for establishing and maintaining current written personnel policies, and personnel practices and procedures that encourage good patient or resident care" (emphasis supplied). The purpose of this regulation, however, is to protect patients, not to define the employment relationships at the nursing home. The regulation does not expressly require that the licensee be the employer of the employees providing the health care. Nor does it preclude the licensee from contracting with an independent company to provide such services, as was done here. Cf. Reida v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 554 (1994) (no error in allowance of summary judgment for hospital as emergency room physician being sued for institutionalizing patient was “part of an incorporated emergency room physicians’ group which provided service to hospital as an independent contractor”). The licensee’s responsibility, as defined by the regulation, is to “procure,” not employ, competent personnel. Nevertheless, even if it exercises its right to contract out health care services, the licensee retains certain residual responsibilities regarding the selection and direction of health care personnel to satisfy its licensing obligation to the Department of Public Health. It also cannot contract away responsibility for the development of policies, practices, and procedures that encourage “quality” patient care. Despite these nondelegable responsibilities, however, we do not interpret this regulation as dictating, as a matter of law, that all licensees are joint employers for the purposes of G. L. c. 151B. It is c. 151B, not the Department of Public Health’s regulation, that provides the “detailed framework . . . [for] employment discrimination” claims. Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). The regulatory requirements do not displace the multi-factor analysis of joint employer status under current antidiscrimination statutes and case law. Rather, the regulatory requirements must be integrated into that analysis. Consideration of the regulation, the management agreement, and the other evidence contained in the record leads us to conclude that the allowance of Omega’s summary judgment motion was error. Omega negotiated for the creation of the director of nursing position in the agreement. It provided the money to pay Commodore’s and all other employees’ salaries. Also, the extent to which Omega contracted away the employment function while still being able to fulfil its obligations as a licensee is unclear from the record. The contract language obscures the issue both by broadly delegating responsibility for the employment relationship to Genesis and leaving Omega the responsibilities required by law and regulation. Those requirements, however, preclude the contracting away of responsibility over personnel issues related to quality patient care. In this regard, the agreement is ambiguous. See Seaco Ins. Co. v. Barbosa, 435 Mass. 772, 779 (2002) (“If a contract ... is unambiguous, its interpretation is a question of law that is appropriate for a judge to decide on summary judgment .... Where, however, the contract . . . has terms that are ambiguous, uncertain, or equivocal in meaning,” the parties’ intentions may depend on disputed material facts). See also Affiliated FM Ins. Co. v. Constitution Reinsurance Corp., 416 Mass. 839, 845-846 (1994) (summary judgment inappropriate where contract language ambiguous, and evidence of trade usage was necessary to interpret contract); Cardone v. Boston Regional Med. Center, Inc., 60 Mass. App. Ct. 179, 186-187 (2003). Neither party has submitted evidence regarding the parties’ actual application of the agreement. See Restatement (Second) of Contracts § 202 comment g, at 90 (1981) (“The parties to an agreement know best what they meant, and their action under it is often the strongest evidence of their meaning”). Moreover, Omega, as owner-licensee, retained in the agreement substantial financial control, as well as the right to inspection and the right to monthly consultation regarding operational decisions. However, the record reveals next to nothing about how those rights were exercised under this agreement and what their impact was on Commodore, whose high-level position as director of nursing would have involved her in decisions that would have concerned the owner-licensee of the facility as well as the manager. In sum, given Omega’s contract rights, the ambiguities in the contract, the nondelegable responsibilities set by the Department of Public Health regulation, the gaps in the record, and the fact-sensitive nature of the joint employer determination, it is not correct to conclude that Commodore has no reasonable expectation of proving that Omega was a joint employer. Kourouvacilis, 410 Mass. at 716. 2. General Laws c. 93, § 102, claim. The motion judge also allowed summary judgment on the claim arising under G. L. c. 93, § 102 (also known as the Massachusetts Equal Rights Act), on the sole ground that Omega could not be liable as a joint employer. In so doing, he declined to consider whether that claim was barred by the G. L. c. 151B claim. As we have concluded that (1) summary judgment should not have been allowed at this stage on the joint employer question, and (2) neither party has briefed the issue of the interrelationship between G. L. c. 151B and G. L. c. 93, § 102, we also reverse the allowance of summary judgment on the equal rights claim. The issue whether the G. L. c. 93, § 102, claim is barred by the c. 151B claim is better considered on a fuller record after briefing. 3. General Laws c. 149, § 187, claim. The plaintiff also claims that Omega violated G. L. c. 149, § 187(b), the health care whistleblower statute, which provides as follows: “[A] health care facility shall not refuse to hire, terminate ... or take any retaliatory action against a health care provider because the health care provider . . . disclose[s] to a manager ... an activity ... of the health care facility .. . that the health care provider reasonably believes is in violation of a law or rule or regulation ... or [in] violation of professional standards of practice which the health care provider reasonably believes poses a risk to public health.” There is no question that Commodore is a health care provider. At issue is whether Omega is liable in these circumstances as a health care facility. Omega successfully argued to the motion judge that it was not a health care facility because it did not “employ health care providers.” We conclude that this statute does not call for an analysis precisely parallel to G. L. c. 151B. The focus of G. L. c. 149, § 187, is broader than the determination of employer status, and Omega, as owner-licensee of the health care facility, may be held responsible for G. L. c. 149, § 187, violations, even if it is not a joint employer pursuant to G. L. c. 151B. As provided in c. 149, § 187(a), a “[h]ealth care facility” is defined as follows: “[A]n individual, partnership, association, corporation or trust or any person or group of persons that employs health care providers, including any hospital clinic, convalescent or nursing home ... or other provider of health care services licensed, or subject to licensing by . . . the department of public health; any facility as defined in section 3 of chapter 111B;[] any private county or municipal facility .. . which is licensed or subject to licensing by the department of mental health ... or the department of mental retardation; any facility as defined in section 1 of chapter 123[]...." The statute is specific to the health care industry and is designed to safeguard patient care by protecting the rights of health care providers who expose deficiencies in care that violate laws or regulations or professional standards that endanger public health. The term “health care facility” in G. L. c. 149, § 187, is directed at the facility providing the care, i.e., the hospital, clinic, nursing home, or other health care center. The term is broadly defined. To insure its inclusiveness, and therefore its applicability outside the institutional setting, the definition encompasses any “individual, partnership, association, corporation, or any person or group of persons that employs health care pr

MANZO v PETRELLA AND PETRELLA & ASSOCIATES, PC Docket No. 245735. Submitted April 6, 2004, at Detroit. Decided May 4, 2004, at 9:15 A.M. Leave to appeal sought. David L. Manzo, M.D., filed a legal malpractice action against Marisa C. Petrella and Petrella & Associates, PC., after the defendants concluded their representation of the plaintiff in his action against his former employer, the Henry Ford Health System. The defendants filed a motion for summary disposition contending that the plaintiff could not prove the proximate cause element — the case within a case — necessary to prevail. Specifically, the defendants asserted that even if the plaintiffs Whistleblowers’ Protection Act (WPA), MCL 15.361 et seq., claim in the underlying action had not been dismissed as untimely filed, it was subject to dismissal because the plaintiff did not allege that he was discharged for reporting to a public body unlawful or improper conduct committed by other doctors working for his former employer. Moreover, the defendants claimed that the former employer’s Peer Standards and Conduct Committee, which the plaintiff asserted he made a report to, was not a “public body” as defined in the wpa, MCL 15.361(d). The Oakland Circuit Court, Denise Langford-Morris, J., entered an order that denied defendants’ motion. The court reasoned that, but for the statute of limitations barring the plaintiffs wpa claim in the underlying action, the factual evidence was sufficient to permit that claim to survive the motion for summary disposition. The Court of Appeals denied the defendants’ application for leave to appeal. The Supreme Court, in lieu of granting leave, remanded the case to the Court of Appeals for consideration as on leave granted. 467 Mich 930 (2002). The Court of Appeals held: The circuit court erred when it denied the defendants’ motion for summary disposition. The plaintiff cannot show a viable wpa claim and so he cannot prevail on that claim. Therefore, the plaintiff cannot succeed in his legal malpractice action because he cannot prove that the defendants’ failure to timely file his WPA claim proximately caused him injury. The plaintiff is unable to prove the first element of a prima facie violation of the wpa, i.e., that he was engaged in a protected activity as defined by the wpa. The plaintiffs claim that he reported a violation or suspected violation of law to his former employer’s Peer Standards and Conduct Committee was not a protected activity because that committee was not a public body as defined by the WPA, MCL 15.361(d)(iv). MCL 15.361(d)(iv) provides that a public body is one that is created by a state or local authority. As interpreted by our Supreme Court, the Public Health Code, MCL 333.21513(d), requires hospitals, like the plaintiffs former employer, to establish peer review committees. Here, the former employer, a private entity, pursuant to its internal bylaws and procedures established the Peer Standards and Conduct Committee. That fact, in conjunction with the absence in MCL 333.21513(d) of any legislative scheme implementing reporting requirements by a peer review committee to any governmental agency, established that the Peer Standards and Conduct Committee was not created by governmental authority. Additional support for that conclusion is found in MCL 333.20175(8) and MCL 333.21515. These statutes expressly state that any information or documents collected, used, or generated by a peer review committee, like the Peer Standards and Conduct Committee, are not public documents and are not subject to court subpoena. Finally, the protections of the WPA are not made applicable to reports made to the Peer Standards and Conduct Committee by implication from MCL 333.20180. A plain reading of that statute discloses no private right of action. Specifically, the statute repeatedly references “the department” and that term clearly means a governmental department or agency. In addition, the plaintiff does not meet the express conditions set forth in the statute for gaining any protections afforded by that statute. Reversed and remanded. Hospitals — Peer Review Committees — Whistleblowers’ Protection Act — Public Body. A peer review committee created by a private hospital under legislative mandate, but pursuant to that hospital’s internal bylaws and procedures, is not a “public body” created by state or local authority as defined in the Whistleblowers’ Protection Act; an employee of that hospital is not engaged in a protected activity under the Whistleblowers’ Protection Act when he reports violations or suspected violations of laws, regulations, or rules to the hospital’s peer review committee (MCL 15.361[d][iv], 333.21513[d]). Sommers, Schwartz, Silver & Schwartz, PC. (by Donald J. Gasiorek and Patrick Burkett), for the plaintiff. Plunkett & Cooney, PC. (by Christine D. Oldani, Michael P. Ashcraft, Jr., and Ellen Bartman Jannette), for the defendant. Before: TALBOT, EJ., and NEFF and DONOFRIO, JJ. DONOFRIO, J. Defendants appeal by leave granted an order denying their motion for summary disposition. After this Court denied defendants’ initial application for leave to appeal, our Supreme Court remanded the case to this Court in lieu of reviewing this legal malpractice action. 467 Mich 930 (2002). Defendants argue that the trial court erred when it did not grant their summary disposition motion. Plaintiff is unable to meet his burden of proving causation in the legal malpractice claim because he cannot show a viable claim under the Whistleblowers’ Protection Act, MCL 15.361 et seq. We reverse and remand. Defendant Petrella represented plaintiff in a suit filed against his former employer, Henry Ford Health System, and numerous individuals and related entities. Plaintiff began working for Henry Ford Health System (HFHS) in 1988 and is a board-certified ophthalmologist. In 1997 friction developed between plaintiff and his division head, Dr. Bogorad. Plaintiff accused Dr. Bogorad of using his position to make sure that he saw patients with particular problems and especially those who needed surgery, apparently because surgical procedures generate more revenue than routine eye care. Plaintiff claims that this made it increasingly difficult for plaintiff and other ophthalmologists to schedule and perform surgery, which not only meant that plaintiff was losing the opportunity to keep his surgical skills current, but also meant that his patients had less or delayed access to surgical procedures. Plaintiff, at some point, also raised concerns regarding allegedly improper billing practices by Dr. Bogorad and others whom he supervised. According to plaintiffs former employer and the others that he sued in the original action, plaintiff was a disruptive influence in Dr. Bogorad’s division, for example, plaintiff actively solicited other staff members at HFHS’s West Bloomfield and Troy facilities to support his campaign against Dr. Bogorad by signing letters in support. When plaintiff accused Dr. Bogorad of being “subversive, manipulative, and derelict” in his duties, Dr. Nussbaum, chairperson of the HFHS eye care services department, requested a six-month probationary period be imposed upon plaintiff in light of his behavior and bad judgment. The vice president of medical affairs agreed with the request. In July 1997 plaintiff retained defendants to represent him in connection with the administrative actions being taken or contemplated against him. Plaintiff appealed to the HFHS Professional Standards and Conduct Committee (PSCC). Following a hearing held in December 1997, plaintiff and his attorney received a letter placing him on decision-making leave for one week. Plaintiff was expected to resign or face further action. When plaintiff refused to resign, his employment and staff membership with the hospital were terminated by letter to counsel dated February 10, 1998. Further administrative appeals upheld the termination. Later that year, on September 9, 1998, defendant Marisa C. Petrella filed a complaint on plaintiffs behalf in the circuit court alleging breach of contract, promissory estoppel, defamation, violation of the Whistleblowers’ Protection Act (WPA), MCL 15.361, et seq., retaliatory or constructive discharge, religious or ethnic origin discrimination, tortious interference ■ with advantageous business relationship, and misappropriation of name. Hfhs moved for summary disposition on all counts. In connection with the WPA claim, HFHS argued that it was untimely because it was filed more than ninety days after plaintiffs discharge. HFHS also argued in the alternative that plaintiff could not establish a prima facie whistleblower violation case. After a hearing, the trial court granted summary disposition on most of the counts of the complaint. In connection with the whistleblower’s action, the court agreed that it was untimely, and that plaintiffs attempt to state a separate cause of action under the Public Health Code, MCL 333.20180, was likewise time-barred. The trial court stated: While arguably, plaintiff, would have the protection of the whistleblower’s protection act, plaintiff is still bound by the statute of limitations for such claims, and there is no dispute that the complaint was filed in excess of 90 days after the termination. Plaintiffs argument that the statute must be told [sic], is without authority, and otherwise unpersuasive. The motion is granted as to count 4. With regard to count 5, which alleges retaliation. The Public Health Code provides no separate right of action other than the referenced application to the whistleblower’s protection act. As such, this count is also dismissed as to the whistleblower’s claim is time-barred. According to defendants, an order was entered on May 31, 2000. The order was not appealed, and the case was eventually resolved after all parties accepted the results of case evaluation. Plaintiff filed the instant action on September 13, 2000, alleging legal malpractice. Defendants moved for summary disposition, arguing that plaintiff cannot establish the proximate cause element of his cause of action, i.e., cannot prove the “case within a case,” necessary to prevail in a legal malpractice action. Defendants argued that plaintiffs WPA claim should have been dismissed even if it was not untimely because the hospital’s PSCC was not a “public body” within the meaning of the Whistleblowers’ Protection Act, MCL 15.361(d), and because plaintiff had not even alleged that he was discharged for having reported, or for being about to report, a violation or suspected violation of a law or regulation or rule to a public body. Plaintiff responded that the PSCC was a “public body” for purposes of the WPA, and even if it was not, MCL 333.20180 of the Public Health Code in effect made the PSCC a public body for purposes of the WPA. After hearing argument, the court noted the elements of causes of action for legal malpractice and violation of the WPA, and then denied defendants’ motion for the following reasons: The court finds that plaintiff has established a prima facie case of legal malpractice. Plaintiff has presented sufficient evidence that there was a factual basis for the Whistleblower’s Act claim, and that but for the statute of limitations problem, his cause of action would have survived the motion for summary disposition. Therefore, defendants’ motion for summary disposition is not appropriate. An order was entered denying defendants’ motion for the reasons stated by the court on the record. Defendants applied for leave to appeal, arguing that the trial court erred in denying their motion for summary disposition. This Court denied defendants’ motion. Defendants appealed to our Supreme Court which, in lieu of granting leave, remanded the case for our consideration. This Court reviews de novo the trial court’s decision concerning a motion for summary disposition. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). If genuine issues of material fact do not exist and the moving party is entitled to judgment as a matter of law, summary disposition pursuant to MCR 2.116(0(10) is appropriate. West, supra at 183. “A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” Id., citing Shallal v Catholic Social Services of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997); Quinto v Cross & Peters Co, 451 Mich 358, 369; 547 NW2d 314 (1996). Whether a plaintiff has established a prima facie case under the WPA is a question of law subject to review de novo. Phinney v Perlmutter, 222 Mich App 513, 553; 564 NW2d 532 (1997). We also review de novo questions of statutory interpretation. Frank W Lynch Co v Flex Technologies, Inc, 463 Mich 578, 583; 624 NW2d 180 (2001). “A bedrock principle of statutory construction is that ‘a clear and unambiguous statute leaves no room for judicial construction or interpretation.’. . . When the statutory language is unambiguous, the proper role of the judiciary is to simply apply the terms of the statute to the facts of a particular case.” Rakestraw v Gen Dynamics Land Systems, Inc, 469 Mich 220, 224; 666 NW2d 199 (2003) (citations omitted). Defendants argue on appeal that the trial court clearly erred when it denied their motion for summary disposition because plaintiff was unable to meet his burden of proving causation in this legal malpractice action. The elements of legal malpractice are: (1) the existence of an attorney-client relationship; (2) negligence in the legal representation of the plaintiff; (3) that the negligence was the proximate cause of an injury; and (4) the fact and extent of the injury alleged. Charles Reinhart Co v Winiemko, 444 Mich 579, 585-586; 513 NW2d 773 (1994). For purposes of this appeal, we are only concerned with causation. In order to establish proximate cause, a plaintiff must show that a defendant’s action was a cause in fact of the claimed injury. Hence, a plaintiff must show that, but for an attorney’s alleged malpractice, the plaintiff would have been successful in the underlying suit. This is the “suit within a suit” requirement in legal malpractice cases. Id. at 586-587. Specifically, defendants argue that plaintiff could not show a viable WPA claim and that, because he could not prevail on the WPA claim, plaintiff could not succeed in his legal malpractice action. To establish a prima facie violation of the WPA, 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. Chandler v Dowell Schlumberger, Inc, 456 Mich 395, 399; 572 NW2d 210 (1998); Shallal, supra at 610. The instant case only involves the first element. Plaintiff claims he was discharged in violation of the WPA because he reported a violation or a suspected violation of the law or regulation or rule to a public body. Defendants contend that the hospital’s PSCC is not a public body within the meaning of the WPA. Thus, the key question before us is whether the PSCC is a public body within the meaning of the WPA. A protected activity under the act 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.” Chandler, supra at 399 citing the WPA, MCL 15.362; Roulston v Tendercare (Michigan), Inc, 239 Mich App 270, 279; 608 NW2d 525 (2000). The PSCC is what is commonly referred to as a peer review committee responsible for the retrospective review of patient care. Defendants argue that the hospital is a private entity, not a public or governmental hospital, and that the PSCC is a private administrative entity and not a “public body” for purposes of the WPA. Plaintiff argues to the contrary that the PSCC is a public body pursuant to the operation of MCL 333.21513 and MCL 15.361(d)(iv). Under the Public Health Code, MCL 333.21513(d), hospitals [s]hall assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. Our Supreme Court has interpreted this provision to mean that “[h]ospitals are required to establish peer review committees whose purposes are to reduce morbidity and mortality and to ensure quality care.” Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 41; 594 NW2d 455 (1999). Further, MCL 15.361(d)(iv) provides that “public body” means: Any other 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. [Emphasis added.] We are not persuaded by plaintiffs interpretation of the application of the foregoing statutes that the PSCC was created through state or local authority. Hfhs is a private hospital. Michigan requires all hospitals, even private entities like HFHS to establish peer review committees. Through its compliance with a legislative mandate to monitor and review their own professional practices, HFHS, a private body, created the PSCC by virtue of its own internal bylaws and procedures. MCL 333.21513(d) provides that these committees are for the purpose of improving patient care. The statute does not provide a legislative scheme or any guidelines whatsoever governing implementation, action, or reporting requirements to any governmental agency. Considering the lack of direction, we find that MCL 333.21513(d) does not implicate governmental authority. We also find significant two additional sections in the Public Health Code, MCL 333.20175 and MCL 333.21515. Both statutes “govern the confidentiality of records, reports, and other information collected or used by peer review committees in the furtherance of their duties and evidence the Legislature’s intent to fully protect quality assurance/peer review records from discovery.” Ligouri v Wyandotte Hosp, 253 Mich App 372, 376; 655 NW2d 592 (2002), citing Dorris, supra at 40 (emphasis in original). MCL 333.20175(8) states: The records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency ... are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena. And, MCL 333.21515 reads: The records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall he used only for the purposes provided in this article, shall not be public records, and shall not be available for court subpoena. The plain language of each statute illustrates that the records, reports, and other related documents collected, used, or generated by a hospital’s PSCC are privileged from disclosure. The discoverability of these documents is not contingent upon the type of claim asserted by a subpoena proponent. Ligouri, supra at 377. These documents are not subject to disclosure in a criminal investigation pursuant to a search warrant, In re Investigation of Lieberman, 250 Mich App 381; 646 NW2d 199 (2002), a civil suit concerning an assault on a hospital patient, Dorris, supra, a medical malpractice claim, Gallagher v Detroit-Macomb Hosp Ass’n, 171 Mich App 761, 431 NW2d 90 (1988), or an investigation by the Board of Medicine, Attorney General v Bruce, 422 Mich 157; 369 NW2d 826 (1985). Any data amassed, assembled, or produced by a PSCC is statutorily protecte