Michael Hart v. Publicis Touchpoint Solutions ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0440n.06
Case No. 19-2411
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 29, 2020
MICHAEL HART, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF MICHIGAN
PUBLICIS TOUCHPOINT SOLUTIONS, INC., )
)
Defendant-Appellee. ) OPINION
)
BEFORE: MOORE, CLAY, and McKEAGUE, Circuit Judges.
McKEAGUE, Circuit Judge. Michael Hart sued his previous employer, Publicis
Touchpoint Solutions, claiming that it retaliated against him for refusing to violate the law, in
violation of Michigan public policy. The district court granted summary judgment to Publicis, and
Hart appealed. Because we find that there is no dispute of material fact, and Hart never refused to
violate the law, we AFFIRM.
I
Michael Hart worked as a professional sales representative for Publicis Touchpoint
Solutions from December 2012 to September 2016. Publicis had been hired by Pfizer to provide
the sales force for two of Pfizer’s prescription drugs, Quillichew ER and Quillivant XR. And so,
Hart was assigned a territory in Michigan and given a list of doctors’ offices to target for marketing
Case No. 19-2411, Hart v. Publicis Touchpoint Solutions
efforts. Every day, he was required to make eight sales calls. Three or four times per week, he
hosted lunches for doctors, and frequently the doctors’ staff members, to discuss the drugs. And
about once a year, he attended dinner programs where speakers educated medical staff in the
audience about Quillichew or Quillivant.
A. Lansing Pediatrics Lunch
In April 2014, Hart hosted a lunch at Lansing Pediatrics. When he called the office
beforehand to confirm the lunch, he was directed to the office manager, Sherry Sheehan. Sheehan
requested that he bring lunch for 60 people. She mentioned that any extra meals could go to the
night staff or cleaning staff and that her daughter had a softball game that night. Hart balked. Only
30 people had attended his last lunch at Lansing Pediatrics in February. He was hesitant to provide
so many extra meals. He believed providing them would violate the Physician Payments Sunshine
Act (PPSA), and he told Sheehan so. She grew agitated with Hart, telling him not to question her.
According to Hart, he then spoke to his supervisor at Publicis, John Williams. He told
Williams that Sheehan had requested 60 boxed lunches—which he believed violated the PPSA—
and that things were “going south in a hurry.” Hart says he asked Williams if he could cancel, but
Williams told him to go through with the lunch anyway.
Hart proceeded with the Lansing Pediatrics lunch, and things continued to go downhill.
Hart brought the 60 boxed lunches Sheehan requested, but he and Sheehan still scuffled about
other aspects of the lunch, like the sign-in process. Moreover, only 32 people attended, which
meant that Hart had brought 28 extra meals. And a few days later, Sheehan called Publicis to
request that Hart no longer visit Lansing Pediatrics. She complained that Hart was “overly
aggressive and verbally abusive,” and that he “inappropriately touched” a female employee at the
lunch.
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Williams (Hart’s supervisor) and Nancy McConville (Publicis’s senior human resources
officer) called Hart to address the complaint. Hart defended himself, saying that Sheehan’s
allegations were baseless. He believed Sheehan complained only because he resisted providing
the extra lunches that she requested. McConville allegedly said that she accepted what Hart was
saying, but that Publicis had to take the allegations seriously. And so Publicis issued Hart a
warning and placed him on disciplinary status, which made Hart ineligible for a bonus.
B. Dinner Program
Over a year later, in November 2015, Hart attended a dinner program at which Dr. Terry
Dickson presented information about Quillivant. In Dr. Dickson’s presentation, he made 15
separate mistakes, ranging from benign errors like neglecting to “explain Quillivant XR’s
proprietary mechanism of release” and misstating which company had developed the medicine, to
more concerning errors such as stating that he didn’t “think Quillivant XR is abusable” (this despite
the “black box warning” that Quillivant has a “high potential for abuse”). Each time he made a
mistake, Hart or his co-worker, Susan Tisch, interrupted the doctor to announce a correction. Hart
believed every correction to be legally required under the Food, Drug, and Cosmetic Act (FDCA).
It was very unusual to have so many corrections, and because Hart believed “this [wa]s a training
issue[,]” he felt obligated to tell Lance Lamotta, Pfizer’s director of training.
The accounts diverge, but here’s what Hart says happened. That night, Hart stepped out of
Dr. Dickson’s presentation and called Williams. Hart told him about the large number of
corrections and his plan to inform Lamotta. Williams told him not to reach out to Lamotta. Hart
alleges that, despite Williams’s instruction, he sent Lamotta an email (and copied Williams on it)
saying that he had made a “whole bunch of corrective statements” at the dinner program and that
Lamotta could call him for more details. According to Hart, Williams then scheduled a conference
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call between himself, Hart, Tisch, and Lamotta, because Williams wanted to hear whatever Hart
said to Lamotta. Williams phoned Hart to tell him about the conference call, and Williams also
instructed Hart not to tell Lamotta about all 15 corrections because it would put Publicis in a bad
light; Hart could tell Lamotta about only a few. Then, just before the conference call was to begin,
Hart says that Williams sent him a text message saying, “if you open your mouth and say one word
to Pfizer, things are going to get very bad for you.”
Williams denies all of this. He says he didn’t tell Hart not to inform Lamotta about the
corrections. And he never sent a threatening text saying that if Hart talked to Lamotta things would
get bad for him.
Here’s Hart’s recollection of the conference call. At first Williams did most of the talking,
trying to cut off the call by saying that that they didn’t need to waste Lamotta’s time with any
specifics. But Lamotta asked to hear from Hart. So, Hart explained that he had made 15
corrections at the dinner program and that Williams had asked him not to tell Lamotta about them.
When Hart finished, Lamotta allegedly said he wasn’t concerned about the corrections Hart had
made, but he was concerned about the lack of corrections reported by Williams in earlier programs.
Curiously, Hart says that Williams texted him, “good job,” after they hung up. But then when Hart
and Williams attended a national sales conference in Las Vegas months later, Williams told him
“not to talk to anyone from Pfizer”—“[e]specially Lance Lamotta.” According to Hart, this
instruction was retaliation for Hart’s telling Lamotta about the corrections.
According to Williams, the conference call described by Hart never happened, and such a
call wouldn’t have happened under Publicis’s procedure for handling corrections at speaker
programs. He says that Lamotta wouldn’t be involved in corrections made in any individual
program, only the legal team would be. Williams also denies instructing Hart not to speak to
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anyone from Pfizer at the conference in Las Vegas. As for Lamotta, he says he remembers seeing
Williams at sales conferences every year but doesn’t recall any phone conversations with him.
C. Meetings with Dr. Field
Almost a year later, in September 2016, Williams asked Hart to get him a meeting with Dr.
Field, one of the doctors on Hart’s assigned list of contacts. And he asked for a meeting the next
day, which happened to be a Friday. Williams wanted a letter from Dr. Field advocating for adding
Quillichew to Michigan’s list of Medicaid-approved drugs. According to Hart, Williams wanted
Dr. Field’s signature on a letter pre-written by Pfizer, which Hart alleges would violate the
Michigan Medicaid False Claims Act. Hart said he would try to arrange the meeting, but it might
be difficult given the short notice.
In the meantime, Williams called on Dr. Field’s office himself. He was told that the doctor
couldn’t meet with him because the office was closed on Fridays. Williams was surprised by this.
He double-checked Michael’s reports in Publicis’s system, and Hart had recorded visiting Dr. Field
on several Fridays.
Back to Hart. Hart says that when he called Dr. Field’s office to arrange the meeting for
Williams, he got a mouthful from Leslie Field, the office receptionist. According to Hart, she
complained that Williams had been badgering them all day, insisting that Dr. Field meet with him
the next day, and she said the office was “not going to play ball [with] somebody dictating what
the doctor is going to do with his time.”
Then Williams called Hart. Williams mentioned that he was disappointed that Hart had
reported meetings with Dr. Field on Fridays when the office was closed. According to Williams,
Hart admitted that he didn’t speak with Dr. Field on those Fridays, but he insisted that he had
visited the office and reported the calls in order to keep up his call numbers.
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D. Hart’s Termination
About a week later, Williams called Hart and terminated his employment at Publicis. He
explained that Hart was being fired for reporting Friday meetings with Dr. Field that never
happened. Hart objected. Hart says that the office wasn’t closed on Fridays. The doctor didn’t
usually see patients, but the staff was frequently still there. According to Hart, he had performed
whole-office visits with Dr. Field’s staff on those Fridays, which he says are permissible under
Publicis policy and are indistinguishable in the reporting system from meetings with the doctor
himself. Hart demanded that Williams tell him what calls he had fabricated. Williams couldn’t
tell him, and a representative from HR said it didn’t matter because the decision had been made to
fire Hart.
Upset, Hart then went back to Dr. Field’s office. According to him, he asked the
receptionist, Leslie Field, to confirm which dates he had visited their office to cross-reference his
records. According to Ms. Field, Hart handed her a list of dates and demanded that she lie and say
he visited the office on those days, saying he would be fired if she didn’t. Hart argues this is
implausible since he had already been fired when he visited the office. Ms. Field says Hart refused
to leave until she said they would consider saying he visited the office on the given dates. Even
then, Ms. Field says, another doctor had to ask him to leave, threatening to call the police. Hart
denies refusing to leave.
According to Ms. Field, Publicis did call to check whether the “meetings had taken place
and office staff did truthfully relay that no record of such meetings existed, Dr. Field had no
recollection of these meetings, and on at least 2 of the dates in question such a meeting would not
have been possible.”
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Hart then sued Publicis, alleging that it retaliated against him for refusing to violate the
law. The district court granted summary judgment to Publicis, and Hart appealed. Hart v. Publicis
Touchpoint Sols., Inc., No. 18-12899, 2019 WL 5788562 (E.D. Mich. Nov. 6, 2019).
II
We review the district court’s grant of summary judgment de novo. Brumley v. United
Parcel Serv., Inc., 909 F.3d 834, 839 (6th Cir. 2018). Summary judgment is appropriate if Publicis
“shows that there is no genuine dispute as to any material fact and [Publicis] is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). So, viewing the facts in the light most favorable to
Hart, the non-movant, we must determine whether Hart raised a genuine issue as to whether
Publicis retaliated against him for refusing to violate the law. Brumley, 909 F.3d at 839. Because
we find no genuine issue of material fact, we affirm the judgment of the district court.
III
Under Michigan law, employment is presumed to be at-will. Lytle v. Malady, 579 N.W.2d
906, 910 (Mich. 1998). An employer can fire an at-will employee for a “good reason, bad reason,
or no reason at all.” Engquist v. Ore. Dep’t of Agr., 553 U.S. 591, 606 (2008) (internal quotation
omitted); accord Suchodolski v. Mich. Consol. Gas Co., 316 N.W.2d 710, 711 (Mich. 1982) (per
curiam). There is a narrow exception, however. Michigan law recognizes that “some grounds for
discharging an employee are so contrary to public policy as to be actionable.” Suchodolski, 316
N.W.2d at 711. Employers violate public policy when they fire employees for their “failure or
refusal to violate the law in the course of employment.” Rivera v. SVRC Indus., Inc., 934 N.W.2d
286, 298 (Mich. Ct. App. 2019) (quoting Kimmelman v. Heather Downs Mgmt. Ltd., 753 N.W.2d
265, 268 (Mich. Ct. App. 2008)). Hart claims that Publicis did just that; it fired him for refusing
or failing to violate the law on three different occasions. The problem for Hart is that none of the
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things he says Publicis asked him to do amount to a violation of law, at least not of the provisions
he argues on appeal. Thus, even if we accept his account of every disputed fact, Hart never actively
refused to break the law.
First, Hart objected to providing 60 boxed lunches at an event that he anticipated only 30
people would attend. Hart says the extra lunches ran afoul of two statutes: the Physician Payments
Sunshine Act and the Anti-Kickback Statute.
The Physician Payments Sunshine Act is a reporting statute. It doesn’t limit how much
money a company like Publicis spends on doctors; it just requires them to honestly report how
much they spend. 42 U.S.C. § 1320a-7h; Hall v. St. Jude Med. S.C., Inc., 326 F. Supp. 3d 770,
782–83 (D. Minn. 2018); Burns v. Medtronic, Inc., No. 8:15-CV-2330-T17-TBM, 2016 WL
3769369, at *6 (M.D. Fla. July 12, 2016). Hart doesn’t allege that anyone asked him to falsely
report his spending, and, more importantly, he doesn’t allege that he refused to file a false report.
He objected only to holding the event and providing the extra lunches.
The Anti-Kickback Statute (AKS) proscribes “knowingly and willfully offer[ing] or
pay[ing] any remuneration (including any kickback, bribe, or rebate) directly or indirectly, overtly
or covertly, in cash or in kind to any person to induce such person . . . to purchase, lease, [or] order
. . . any good, facility, service, or item for which payment may be made in whole or in part under
a Federal health care program.” 42 U.S.C. § 1320a-7b(b)(2)(B). Hart’s argument boils down to
the contention that 28 extra sandwiches, purportedly given to the night staff, the cleaning staff,
and the office manager’s daughter’s softball team, constituted a kickback intended to induce the
doctors at Lansing Pediatrics to prescribe Quillivant more often. But even if providing free food
to a physician’s staff could, in some case, induce a physician to prescribe more of a prescription
drug (at the federal government’s expense), Hart presents no evidence that a reasonable person in
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his position could have thought that that’s what was occurring here. He points to no evidence
indicating that Publicis or Pfizer intended the sandwiches to be bribes; that Lansing Pediatrics
solicited the sandwiches as bribes; or that, even if the sandwiches could somehow be construed as
bribes, their provision here related to either Quillvant prescriptions in general or federal healthcare
spending in particular. All of which makes this case even weaker than prior AKS retaliation cases
where we have affirmed grants of summary judgment to employers. Cf., e.g., Jones-McNamara
v. Holzer Health Sys., 630 F. App’x 394, 395–96 (6th Cir. 2015) (plaintiff alleged that she was
fired after accusing her employer of providing jackets and food to a group of ER doctors in
exchange for those doctors requesting Medicare-funded ambulatory services from her employer’s
client, which the doctors regularly did). So this part of Hart’s claim fails.
Next, Hart insisted on telling Lamotta about the corrections he made at the dinner program,
despite being told not to by Williams. But, just like holding the lunch, failing to tell Lamotta
wouldn’t have violated the law. Hart points to the Food, Drug, and Cosmetic Act (FDCA).
Specifically, he relies on the section prohibiting misbranding a drug. 21 U.S.C. §§ 331(b), 352.
Even if we assume that the corrections themselves were required to prevent misbranding under the
FDCA, it doesn’t matter. Hart doesn’t allege that he was retaliated against for making the
corrections; he says he was retaliated against for telling Lamotta about them. And Hart doesn’t
cite anything in the FDCA that required Hart to notify Lamotta. (Nor, in our own research, can
we find any such requirement.) Therefore, Hart wasn’t refusing to violate the law when he insisted
on reporting the corrections to Lamotta.
Compare this case to Meury v. Connie Kalitta Services/American International Airways,
Inc., 181 F.3d 102 (Table), 1999 WL 357774 (6th Cir. 1999), superseded by statute on other
grounds, Whistleblowers’ Protection Act, Mich. Comp. Laws §§ 15.361–15.369. There we found
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that the federal aviation regulations required pilots to report violations to their supervisors, and so
any pilot who was retaliated against for reporting a violation was retaliated against for refusing to
violate the law. Id. at *2; see also Cushman-Lagerstrom v. Citizens Ins. Co. of Am., 72 F. App’x
322, 329 (6th Cir. 2003) (“[T]he facts in Meury indicate that under the federal aviation regulations
the plaintiff had an affirmative legal duty to report the violation, and therefore his reporting of the
violation essentially amounted to a failure to violate the law . . . .”). Unlike the federal aviation
regulations discussed in Meury, the FDCA does not appear to require sales associates to report
potential violations to their supervisors (and Hart doesn’t argue otherwise).
One might think that even if the FDCA did not require Hart to tell Lamotta about the
misstatements, the purpose of the statute was served by Hart doing so. Under this line of reasoning,
one could be forgiven for thinking that Hart might still have a claim for retaliation in violation of
Michigan public policy. Not so. As we have recognized on several occasions, “Michigan does
not recognize a common law cause of action for an employee who has been discharged for
reporting violations of law to a superior.” Shaughnessy v. Interpublic Grp. of Cos., Inc., 506 F.
App’x 369, 377 (6th Cir. 2012) (quoting Goldfaden v. Wyeth Labs., 482 F. App’x 44, 50 (6th Cir.
2012), quoting in turn Cushman-Lagerstrom, 72 F. App’x at 330). And, again, Hart doesn’t argue
to the contrary.
Last is the attempted meeting between Williams and Dr. Field. Hart says setting up the
meeting would have implicated the Michigan Medicaid False Claim Act because Williams planned
to ask Dr. Field to sign a pre-written letter, which Williams intended to submit to the state in
support of adding Quillichew to the Medicaid preferred drug list. Admittedly, this looks bad. But
Hart still hasn’t directed us to any law that this would violate. He cites only a section of the
Michigan Medicaid False Claim Act that proscribes “soliciti[ing], offer[ing], or receiv[ing] a
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kickback or bribe” in return for medical staff prescribing a certain medication or providing a
certain service, for which the medical professional could bill Medicaid. Mich. Comp. Laws
§ 400.604.
Hart has presented no evidence that Williams planned to offer Dr. Field a bribe or kickback
for signing the letter. In his initial complaint, Hart said that Williams planned “to provide a
kickback or bribe to Dr. Field by placing him on the list, in exchange for his signature on the
letter.” But this doesn’t make sense. Hart doesn’t talk about any lists besides Michigan’s Medicaid
preferred drug list, and it’s unclear how Dr. Field, as a physician, could be placed on a list of
approved drugs. Besides this being nonsensical, there is also no evidence to support the claim.
Hart attempts to remedy this problem in his brief on appeal by alleging that there was a different
bribe: his brief says that Publicis was already furnishing Dr. Field with goods and services, which
purportedly served as the bribe for Dr. Field’s signature. But, apart from this broad statement in
Hart’s appellate brief, Hart points to no evidence suggesting that Publicis provided any goods or
services to Dr. Field’s office, and certainly no goods or services provided in anything other than
an arms-length commercial transaction. And even if this allegation were true, without more, Hart
cannot show how asking a customer for a letter like the one at issue in this case could alone
demonstrate a kickback or bribe. Because there is no evidence of any planned bribe, arranging the
meeting would not have violated the Michigan Medicaid False Claim Act.
Because none of the things Hart claims that Publicis asked him to do violated the statutes
he points to in his summary judgment opposition, Hart’s retaliation claims fall flat. “[A]n
employer cannot engage in forbidden retaliation without an employee’s participation in activity
protected by law.” Jones-McNamara, 630 F. App’x at 404. Publicis didn’t retaliate against him
in violation of public policy when it fired him, and it didn’t retaliate against him when Williams
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allegedly instructed him not to speak to Lamotta in Las Vegas or when Publicis issued Hart a
warning that made him ineligible for a bonus.
IV
For these reasons, we affirm the district court’s grant of summary judgment to Publicis.
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