Opinion
SC 164302 COA 348987
12-01-2023
TAMMY McNEILL-MARKS, Plaintiff-Appellant, v. MYMICHIGAN MEDICAL CENTER ALMA, Defendant-Appellee.
Gratiot CC: 14-011876-NZ
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices
ORDER
On October 5, 2023, the Court heard oral argument on the application for leave to appeal the February 10, 2022 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, there being no majority in favor of granting leave to appeal or taking other action.
CAVANAGH, J. (dissenting).
I dissent from this Court's order denying leave to appeal. I echo my dissenting colleague's concern that the Court of Appeals' heavy reliance on portions of the decision in Rivera v SVRC Indus, Inc, 327 Mich.App. 446 (2019) (Rivera I), that we expressly vacated in Rivera v SVRC Indus, Inc, 507 Mich. 962 (2021) (Rivera II), causes confusion about the continued validity of the reasoning in Rivera I. I would reverse, holding that plaintiff stated a prima facie claim under the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq.
Although the Court of Appeals opinion is unpublished and therefore not precedentially binding on future cases, I am troubled that the panel relied on vacated reasoning in Rivera I and that it did so without acknowledging that this Court vacated that reasoning.
The WPA's purpose is protection of the public, and it accomplishes this by protecting whistleblowing employees and removing barriers to reporting violations or suspected violations of law. Dolan v Continental Airlines/Continental Express, 454 Mich. 373, 378-379 (1997). 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 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, unless the employee knows that the report is false, or because an employee is requested by a public body to participate in an investigation, hearing, or inquiry held by that public body, or a court action.To establish a prima facie WPA violation, a plaintiff must show that (1) the plaintiff was engaged in protected activity under the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. Shallal v Catholic Social Servs of Wayne Co, 455 Mich. 604, 610 (1997). The first prong, whether plaintiff engaged in protected activity, is the focus of this appeal. More specifically, the issue here is whether plaintiff's communication to her attorney that a person who was subject to a personal protection order (PPO) appeared at the hospital where plaintiff worked constitutes a "report" under the WPA.
As Justice WELCH explains in greater detail, the Court of Appeals previously held that plaintiff's attorney is a "public body" under MCL 15.361(d)(iv), and this Court denied leave to appeal. McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316 Mich.App. 1 (2016), lv den 502 Mich. 851 (2018). Because we limited the questions in our order scheduling oral argument on the current application to whether plaintiff made a "report," I would not address the "public body" issue in this case.
Plaintiff argues that she made a "report" when she told her attorney that Marcia Fields violated a recently acquired PPO that required Fields to refrain from stalking plaintiff by appearing at plaintiff's workplace. In the phone call, plaintiff told her attorney not to serve the PPO on Fields. The Court of Appeals relied on reasoning in Rivera I to hold that plaintiff's actions did not constitute a "report" under the WPA. McNeill-Marks v MidMichigan Med Ctr-Gratiot (On Remand), unpublished opinion of the Court of Appeals, issued February 10, 2022 (Docket No. 348987) (McNeill-Marks V), pp 3-5. In Rivera I, the Court of Appeals considered whether the plaintiff's communications with her employer's attorney constituted a report within the meaning of MCL 15.362. Rivera I, 327 Mich.App. at 451-453. However, this Court vacated as unnecessary the panel's holding that the plaintiff's communication with her attorney was not a "report," instead finding dispositive the plaintiff's failure to show a causal connection between the communication and the termination. Rivera II, 507 Mich. at 963. Although we vacated the reasoning in Rivera I concerning whether that plaintiff made a "report," the panel below failed to acknowledge this. Moreover, the panel relied on Rivera I's vacated reasoning to find that this plaintiff did not make a "report."
In my view, the definition of "report" adopted by the panel is flawed because it strays from the term's ordinary meaning and is untethered from the text of the WPA. Like the Rivera I Court, the Court of Appeals here relied on the interpretation in Henry v Detroit, 234 Mich.App. 405 (1999), that a plaintiff must, on their own initiative, communicate wrongful conduct to a public body with the purpose of"' "bring[ing] the, as yet hidden, violation to light to remedy the situation or harm done by the violation[.]" '" McNeill-Marks V, unpub op at 4, quoting Rivera I, 327 Mich.App. at 455, quoting Henry, 234 Mich.App. at 410. The panel also adopted the Rivera I Court's use of dictionary definitions to determine the plain and ordinary meaning of "report" under the WPA. Id. at 3. Determining that the most relevant definitions are" 'to make a charge against'" or" 'to make known the presence, absence, condition, etc.'" of something, the Rivera I Court stated that a plaintiff "reports" a violation of the law when they"' "make[] a charge" of illegality against a person or entity or "make[] known" to a public body pertinent information related to illegality.'" Id. at 3, quoting Rivera I, 327 Mich.App. at 464. Finally, the panel explained that relaying an actual or suspected violation of the law to an attorney does not necessarily equal a "report" under the WPA. Id. at 4. While an attorney meets the broad definition of "public body" as a member of the State Bar under McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316 Mich.App. 1 (2016), a deeper analysis of facts and circumstances must be undertaken to determine whether one made a "report" to an attorney, McNeill-Marks V, unpub op at 4-5.
With Rivera I guiding its analysis, the panel here found dispositive that plaintiff, in making known to her personal attorney Fields's appearance at her workplace, lacked the purpose of making a charge of illegality against Fields. McNeill-Marks V, unpub op at 5. In other words, plaintiff did not make a charge of illegality seeking" 'to remedy the situation or harm done by the violation.'" Id. at 5, quoting Henry, 234 Mich.App. at 410 (brackets omitted). That is because plaintiff instructed her attorney not to serve the PPO on Fields and her attorney agreed to honor that direction. Id. The panel therefore found that the communication "lacked the purposeful intent necessary for qualification as a 'report' for WPA purposes." Id.
I would reject the definitions of "report" adopted by the panel here. As this Court has repeatedly held, the statute is clear and unambiguous. Whitman v City of Burton, 493 Mich. 303, 313 (2013); Brown v Mayor of Detroit, 478 Mich. 589, 594 (2007); Chandler v Dowell Schlumberger Inc, 456 Mich. 395, 399 (1998). When a statute's language is unambiguous, "the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted." Sun Valley Foods Co v Ward, 460 Mich. 230, 236 (1999). Although the term "report" is undefined, "if the meaning of a statutory term is plain from the text and the context of the statute itself, resort to a dictionary is unnecessary." Bartalsky v Osborn, 337 Mich.App. 378, 387 (2021).
I would hold that "report" simply means to communicate information known to the reporter about the violation or suspected violation of law. We have previously rejected the argument that a plaintiff's motivation in reporting is relevant to whether a plaintiff has engaged in protected activity under the WPA. Whitman, 493 Mich. at 313 ("Because there is no statutory basis for imposing a motivation requirement, we will not judicially impose one."). Similarly, the Legislature did not include a specific-intent requirement in the WPA. Therefore, requiring an intent to "remedy the situation or harm done by the violation," Henry, 234 Mich.App. at 410, contradicts precedent as well as the plain language of the statute. There is a "report" under the WPA if one communicates information about the violation or suspected violation to a public body, regardless of the reporter's intent.
To the extent that the panel's discussion of the attorney as a public body suggests that the public body must have the authority to address the violation or suspected violation of law, I also would reject that interpretation as extratextual. "Public body" is defined in the WPA. MCL 15.361(d). Neither MCL 15.361 nor MCL 15.362 requires that the public body have the authority to address a violation. This interpretation would add additional language to MCL 15.362-the statute does not say that an employee must report to a public body "with authority to address the violation." Instead, the employee must simply report the violation "to a public body." Further, this interpretation is inconsistent with the purpose of the WPA to protect whistleblowing employees who may not know whether the public body to which they reported has the authority to address the violation. Therefore, I would not interpret the term "report" or "public body" as imposing this requirement.
Defendant argues that adopting a broad definition of the term "report" would not further the purposes of the WPA. However, any hypothetical overinclusivity concerns will be addressed by the causation prong of the burden-shifting framework. See Shallal, 455 Mich. at 610. That is, if a plaintiff cannot show a causal connection between the protected activity and their discharge, then they cannot prevail on their claim. See, e.g., Rivera II, 507 Mich. at 963. Thus, employers will only be held accountable if the whistleblowing employee can show that their report was the cause of their retaliatory discharge-exactly what the WPA prohibits.
Because plaintiff communicated information about Fields's presence at plaintiff's workplace in violation of the PPO to a public body, she engaged in protected activity. This Court has repeatedly rejected interpretations of the WPA that would add requirements not appearing in the statute. See, e.g., Whitman, 493 Mich. at 313 ("MCL 15.362 does not address an employee's 'primary motivation,' nor does the statute's plain language suggest or imply that any motivation must be proved as a prerequisite for bringing a claim."); Brown, 478 Mich. at 594 ("There is no condition in the statute that an employee must report wrongdoing to an outside agency or higher authority to be protected by the WPA."). I would do the same here and, applying the statute's broad and plain language, reverse the Court of Appeals and hold that plaintiff made a "report" under the WPA.
BERNSTEIN, J., joins the statement of CAVANAGH, J.
WELCH, J. (dissenting).
I respectfully dissent from the Court's decision to deny leave to appeal. Instead, I would have granted leave to appeal and explicitly asked whether the Court should reverse the Court of Appeals' holding that practicing members of the State Bar of Michigan are members of a public body for purposes of receiving a report under Michigan's Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. See McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316 Mich.App. 1 (2016) (McNeill-Marks I), lv den 502 Mich. 851 (2018). That important decision has never been reviewed by the full body of this Court. While taking up this question after previously denying leave might seem odd at first blush, the convoluted history of this case demonstrates why doing so would be proper under the circumstances.
At the time this case was first appealed in this Court, two justices were unable to participate.
This matter arises from a claim brought by plaintiff Tammy McNeill-Marks under the WPA alleging retaliatory termination of her employment. Therefore, a review of the basic elements of a WPA claim is helpful to understand my concerns. To establish a prima facie case against an employer under 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, threatened, or otherwise discriminated against" regarding their "compensation, terms, conditions, location, or privileges of employment," and (3) there was a causal connection between the plaintiff's protected activity and the employer's act of discharging, threatening, or discriminating against the plaintiff. Wurtz v Beecher Metro Dist, 495 Mich. 242, 251-252 (2014)." 'Protected activity' under the WPA 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 v Dowell Schlumberger Inc, 456 Mich. 395, 399 (1998), citing MCL 15.362. MCL 15.361 defines the phrase "public body," in relevant part, as follows:
(d) "Public body" means all of the following:
* * *
(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. [Emphasis added.]
The underlying facts in this case were thoroughly summarized by the Court of Appeals below and previously by Justice ZAHRA, see McNeill-Marks v MidMichigan Med Ctr-Gratiot, 502 Mich. 851, 851 (2018) (ZAHRA, J., dissenting) (McNeill-Marks II). In short, plaintiff's employment with MidMichigan Center-Gratiot (MMCG) was terminated following an encounter between plaintiff and Marcia Fields while plaintiff was working at MMCG and Fields was a patient. Plaintiff had a preexisting personal protection order (PPO) against Fields, and she disclosed Fields' presence at MMCG on a phone call with her previously retained attorney, Richard Gay. Despite plaintiff's alleged instructions to the contrary, Fields was served with legal papers while at MMCG. MMCG claims that plaintiff was terminated for violating the Health Insurance Portability and Accountability Act. Fields claims that her termination was unlawful retaliation for her informing Gay of Fields' violation of the PPO. The essence of the legal dispute at this stage is whether plaintiff made a legally protected report to a public body of suspected illegal activity under the WPA, MCL 15.362, when plaintiff informed her attorney, Gay, that Fields had showed up at her work.
Defendant has since changed its name to MyMichigan Medical Center Alma following an affiliation agreement between its parent company, MidMichigan Health, and the University of Michigan Health System.
Following extensive discovery, the trial court granted MMCG's motion for summary disposition on the basis that plaintiff did not communicate with a public body when she called her own attorney and disclosed Fields' presence at her workplace, and therefore the communication could not be a protected report under the WPA. Plaintiff filed an appeal, which resulted in a published decision in her favor reversing the trial court. McNeill-Marks I, 316 Mich.App. 1. Reversing the trial court's decision, the Court of Appeals held that plaintiff's attorney met the legal definition of a "public body" under MCL 15.361(d)(iv). Specifically, it held that plaintiff's attorney was a licensed Michigan attorney and member of the State Bar of Michigan (SBM) and that the SBM is "a body 'created by' state authority, which, through the regulation of our Supreme Court, is also 'primarily funded by or through' state authority." McNeill-Marks I, 316 Mich.App. at 23.
MMCG sought leave to appeal McNeill-Marks I in this Court, and after ordering oral argument on the application for leave to appeal, this Court ultimately denied leave to appeal. McNeill-Marks II, 502 Mich. 851. There was a vigorous dissent authored by Justice ZAHRA, joined by Justice MARKMAN, which argued that the phone call with Gay was not a report under the WPA, id. at 857-861 (ZAHRA, J., dissenting), and questioned whether the SBM or its members are a public body under the WPA, id. at 856 n 13. It is also noteworthy that this Court was operating without two justices when McNeill-Marks II was decided. Regardless, denying leave to appeal does not establish precedent by this Court. MCR 7.301(E) ("The reasons for denying leave to appeal, as required by Const 1963, art 6, § 6 and filed in the clerk's office, are not to be published and are not to be regarded as precedent."); Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich. 304, 313 n 3 (2017).
Now Chief Justice CLEMENT, who had recently been appointed to the Court, did not participate. Justice WILDER also did not participate because he was the author of the Court of Appeals' decision in McNeill-Marks I.
On remand from the Court of Appeals, MMCG again sought summary disposition in the trial court, this time on the basis that plaintiff's phone call with Gay did not constitute a "report" as that term is used in the WPA. The trial court agreed and granted summary disposition in favor of MMCG. Plaintiff appealed a second time, and in a 2-1 unpublished decision the Court of Appeals reversed the trial court again. This time, it reversed on the basis that MMCG's argument was barred by the law of the case doctrine. McNeill-Marks v MidMichigan Med Ctr-Gratiot, unpublished opinion of the Court of Appeals, issued May 21, 2020 (Docket No. 348987) (McNeill-Marks III). Following an appeal from MMCG, this Court reversed McNeill-Marks III and remanded for reconsideration on the basis that the "report" issue had not actually been decided in McNeill-Marks I and therefore the law of the case doctrine did not apply. McNeill-Marks v MidMichigan Med Ctr-Gratiot, 508 Mich. 937 (2021) (McNeill-Marks IV).
On remand from this Court, in another unpublished decision, the same Court of Appeals panel unanimously held that plaintiff's phone call with Gay was not a "report" for purposes of the WPA because the communications lacked the necessary purposeful intent to make a charge against or make known a violation of law. McNeill-Marks v MidMichigan Med Ctr-Gratiot (On Remand), unpublished opinion of the Court of Appeals, issued February 10, 2022 (Docket No. 348987) (McNeill-Marks V). This Court then agreed to hear arguments on plaintiff's application for leave to appeal the decision in McNeill-Marks V. However, despite receiving robust briefing and a request from MMCG to again take a look at the "public body" holding in McNeill-Marks I, the Court has decided to deny leave to appeal. I believe this is a mistake.
While I do not necessarily disagree with the conclusion of the panel in McNeill-Marks V, I have concerns about its future application and this Court's decision to leave in place McNeill-Marks I. I first note that in McNeill-Marks V, the panel decision relied heavily on portions of the Court of Appeals' decision in Rivera v SVRC Indus, Inc, 327 Mich.App. 446 (2019) (Rivera I), which this Court expressly vacated, Rivera v SVRC Indus, Inc, 507 Mich. 962 (2021) (Rivera II). By leaving the unpublished decision in McNeill-Marks V in place without commentary, I fear it allows for conflicting inferences to be drawn about the correctness of the now vacated reasoning in Rivera I. Additionally, several members of this Court signaled interest in reconsidering McNeill-Marks I in Rivera II. I continue to believe that McNeill-Marks I should be reconsidered, and neither the law of the case doctrine, Rott v Rott, 508 Mich. 274, 288-291 (2021), nor any other legal rule that I am aware of precludes this Court from doing so in this case given the lack of a decision on the merits from this Court. As previously noted, the denial of leave to appeal in McNeill-Marks II did not create precedent, MCR 7.301(E), and it was dissented from by two of the five participating members of the Court.
In Rivera II, Justice ZAHRA reiterated his view from McNeill-Marks II that it was questionable whether the SBM or its members should be considered a public body under the WPA, Rivera II, 507 Mich. at 964 (ZAHRA, J., concurring). And Justice VIVIANO's concurring statement, which I joined, raised additional arguments concerning why McNeill-Marks I may have erred by concluding that the SBM and its members are a public body under the WPA, Rivera II, 507 Mich. at 964 (VIVIANO, J., concurring).
The holding in McNeill-Marks I that any dues paying, practicing member of the SBM is a public body for purposes of the WPA raises a host of potentially destabilizing complications for WPA litigation and extensive ethical quandaries for attorneys in Michigan. The cursory legal analysis of this important issue in McNeill-Marks I and the plethora of questions raised by that decision all call for a fresh look by the full Court. For these reasons, I respectfully dissent.
ZAHRA, J., joins the statement of WELCH, J.