McNeill-Marks v. Midmichigan Med. Ctr.-Gratiot

912 N.W.2d 181 (Mem)

Tammy MCNEILL-MARKS, Plaintiff-Appellee,

v.MIDMICHIGAN MEDICAL CENTER-GRATIOT, Defendant-Appellant.

SC: 154159

COA: 326606

Supreme Court of Michigan.

June 15, 2018

Order

On April 12, 2017, the Court heard oral argument on the application for leave to appeal the June 16, 2016 judgment of the Court of Appeals. By order of July 7, 2017, the parties were directed to file additional supplemental briefs. On order of the Court, the supplemental briefs having been received, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

Zahra, J. (dissenting ).

I respectfully dissent from the majority's order denying leave in this case. This action arises from a claim brought under the Michigan Whistleblowers' Protection Act (WPA),¹ a law enacted to protect employees from adverse employment consequences that result from the employee's reporting of actual or suspected violations of law.² The issue presented in this case is whether an employee is reporting suspected illegal activity to a public body under MCL 15.362 —a protected activity under the WPA—when that employee merely informs her private attorney about another person purportedly violating a personal protection order (PPO). The trial court granted summary disposition to defendant on the ground that plaintiff had not reported a suspected illegal activity to a public body under the WPA. The Court of Appeals reversed, holding that plaintiff's private attorney, as a mandatory member of the State Bar of Michigan, is a "public body." Following oral argument on defendant's application for leave to appeal, this Court ordered supplemental briefing on whether plaintiff's communication with her attorney amounted to a "report" under the WPA. I conclude that this communication is not a "report" based on the plain and ordinary meaning of that verb, particularly when it is considered within the context of the WPA and the sui generis nature of the attorney-client relationship. Accordingly, I would reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals for further proceedings.

I. FACTS AND PROCEEDINGS

Plaintiff Tammy McNeill-Marks began working for defendant MidMichigan Medical Center-Gratiot (MMCG) in February 2012. Prior to this time, plaintiff had adopted two children and had a third child placed in her custody. Each child has the same biological mother: Sandi Freeze, plaintiff's second cousin. Marcia Fields, Freeze's mother and the children's biological grandmother, suffers from several psychiatric disorders. After plaintiff took custody of the children, Fields began a pattern of threatening conduct toward plaintiff, which included threats to kill her and her adopted and biological children. This behavior led plaintiff to seek multiple PPOs against Fields.

On January 14, 2013, the Gratiot Circuit Court entered an amended PPO that prohibited Fields from engaging in "stalking" as defined in MCL 750.411h and MCL 750.411i. Fields continued to violate the PPO. On December 27, 2013, plaintiff filed a motion through her attorney, Richard Gay, to extend the PPO. The circuit court granted the motion ex parte. The PPO prohibited the same conduct as the previous PPO and remained in effect until December 31, 2014.

While at work on January 13, 2014, plaintiff unexpectedly encountered Fields at MMCG. Plaintiff said "hello" to a then-unknown person being transported down a hallway in a wheelchair. The person responded, "Hello, Tammy" in what plaintiff described as "[a] little sing-songy voice" that plaintiff immediately recognized as Fields's voice. Plaintiff testified that she did not know Fields was an inpatient at that time. There was no further interaction between plaintiff and Fields at MMCG.

Plaintiff called her attorney, Richard Gay, after her encounter with Fields. Plaintiff testified that she was only returning a missed call from Gay from over the weekend. Plaintiff told Gay that "[Fields] showed up today at my workplace." According to plaintiff, she did not tell Gay whether Fields was a patient at the hospital. Likewise, plaintiff expressly told Gay not to serve Fields with the PPO at MMCG because she had previously been told by Fields's daughter at a funeral that Fields was "really, really ill" and would require heart surgery, which was also confirmed in her family members' Facebook posts.

Nevertheless, later that evening Fields was served with the PPO at MMCG. According to plaintiff and Gay, Fields was served at MMCG as a matter of coincidence that bore no connection with plaintiff's encounter with Fields earlier that day. Apparently, Gay's secretary happened to be at MMCG visiting another patient when she saw Fields there. Gay's secretary had informed her boyfriend, Gay's process server, about Fields's presence at MMCG. Gay's process server went to MMCG, asked for and received Fields's room number, and then served her with the PPO in her hospital room.

Fields reported the incident to defendant as a suspected violation of the Health Insurance Portability and Accountability Act of 1996 (HIPAA).³ In reaction to Fields's HIPAA complaint, defendant began an investigation into plaintiff's conduct. Following defendant's investigation, its privacy officer concluded that plaintiff had violated HIPAA and defendant's internal privacy policies by "disclos[ing] that the patient [Fields] was ... at the hospital," which was "protected health information." Plaintiff was terminated on February 14, 2014. The "Corrective Action and Disciplinary Form" cited plaintiff's telephone conversation with Gay as a "severe breach of confidentiality and violation[ ] of HIPAA privacy/practices" and as the reason for her termination.

Plaintiff brought the instant action against defendant, claiming that her termination violated the WPA and Michigan public policy. Following discovery, defendant moved for summary disposition under MCR 2.116(C)(10). The trial court granted defendant summary disposition as to both claims. With regard to the WPA claim, the trial court ruled in part that plaintiff's conversation with her attorney was not a report to a public body.⁴ The trial court also ruled that plaintiff failed to demonstrate that defendant requested her to conceal or hide the existence of a crime in violation of public policy. Plaintiff appealed.

The Court of Appeals reversed the trial court's ruling regarding the WPA violation and remanded for further proceedings.⁵ The panel held that plaintiff's phone call with attorney Gay regarding her encounter with Fields was a report to a public body and thus a protected activity under the WPA. The panel specifically stated that plaintiff's attorney, as a member of the State Bar of Michigan (SBM), was a member of a "public body" under MCL 15.361(d)(iv ). The panel thus concluded that plaintiff presented sufficient evidence to establish a prima facie case under the WPA.⁶ Defendant sought leave to appeal in this Court. We directed the Clerk of this Court to schedule oral argument on whether to grant the application or take other action.⁷ Following oral argument on the application for leave to appeal, we directed the parties to file additional supplemental briefs addressing the following issues:

[W]hether the communication from the plaintiff to her attorney regarding Marcia Fields's presence at MidMichigan Medical Center-Gratiot amounted to a "report," as that word is used in Section 2 of the Whistleblowers Protection Act (WPA), MCL 15.362. In answering this question, the parties shall, at a minimum, address whether: (1) the plaintiff's communication must be to an individual with the authority to address the alleged violation of law; (2) the WPA requires that a plaintiff employee specifically intend to make a charge of a violation or suspected violation of law against another; and (3) privileged communications between a client and his or her attorney can constitute a report under the WPA.^{[8 ]}

II. STANDARD OF REVIEW

The interpretation of the WPA presents a statutory question that this Court reviews de novo.⁹ We also review de novo a trial court's grant of summary disposition under MCR 2.116(C)(10).¹⁰

III. ANALYSIS

The WPA states, in pertinent part:

An employer shall not discharge ... an employee ... because the employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to law of this state, a political subdivision of this state, or the United States to a public body....^{[11 ]}

MCL 15.361(d) broadly defines the phrase "public body" as follows:

(d) "Public body" means all of the following:

(i ) A state officer, employee, agency, department, division, bureau, board, commission, council, authority, or other body in the executive branch of state government.

(ii ) An agency, board, commission, council, member, or employee of the legislative branch of state government.

(iii ) A county, city, township, village, intercounty, intercity, or regional governing body, a council, school district, special district, or municipal corporation, or a board, department, commission, council, agency, or any member or employee thereof.

(iv ) 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.

(v ) A law enforcement agency or any member or employee of a law enforcement agency.

(vi ) The judiciary and any member or employee of the judiciary.^[12]

The Court of Appeals relied on Subparagraph (iv ) to conclude that the SBM is a "public body" under the WPA. The panel then concluded that plaintiff's attorney, as a mandatory member of the SBM, is a member of a "public body." Assuming without deciding that plaintiff's attorney is a member of a "public body" under MCL 15.361(d)(iv ),¹³ this Court must consider whether plaintiff's communication...