O Tammy McNeill-marks v. Midmichigan Medical Center-Gratiot ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
TAMMY MCNEILL-MARKS, UNPUBLISHED
February 10, 2022
Plaintiff-Appellant,
v No. 348987
Gratiot Circuit Court
MIDMICHIGAN MEDICAL CENTER-GRATIOT, LC No. 14-011876-NZ
Defendant-Appellee.
ON REMAND
Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ.
PER CURIAM.
Defendant sought leave to appeal this Court’s May 21, 2020 judgment, and in lieu of
granting leave, our Supreme Court reversed and remanded for consideration of the issue whether
plaintiff’s communication to her attorney satisfied the reporting requirement of MCL 15.362.1 For
the reasons stated in this opinion, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
We incorporate by reference the factual and procedural background set forth in this Court’s
previous opinions, McNeill-Marks v MidMichigan Medical Center-Gratiot (McNeill-Marks I), 316
Mich App 1; 891 NW2d 528 (2016), and McNeill-Marks v MidMichigan Medical Center-Gratiot
(McNeill-Marks II), unpublished opinion of the Court of Appeals issued May 21, 2020 (Docket
No. 348987).
In McNeill-Marks I, this Court reviewed de novo the trial court’s summary disposition
ruling in favor of MidMichigan Medical Center-Gratiot (MMCG) and reversed in part and
remanded in part in McNeill-Marks I, 316 Mich App 1. MMCG sought leave to appeal to our
1
McNeill-Marks v MidMichigan Medical Center-Gratiot, ___ Mich ___; 964 NW2d 33 (2021).
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Supreme Court which denied leave.2 MMCG moved for reconsideration but our Supreme Court
denied the motion.3 Hence, the case was remanded to the trial court for further proceedings.
MMCG moved again for summary disposition under MCR 2.116(C)(10), this time on the ground
that plaintiff’s communication with her attorney did not constitute a “report” under the
Whistleblower Protection Act (WPA), MCL 15.361 et seq. Plaintiff opposed MMCG’s motion by
arguing that the law-of-the-case doctrine required the trial court to deny the motion because this
Court’s binding published opinion held that she made a report to a public body and that the record
evidence sufficed to establish that she engaged in protected activity and had established her prima
facie case under the WPA. At the hearing, the trial court agreed with MMCG that plaintiff’s
communication to her attorney did not fall within the meaning of a “report” under the WPA.
Therefore, the trial court granted MMCG’s motion.
Plaintiff appealed and argued as she did in the trial court. The current panel of this Court
again reviewed de novo the case and analyzed McNeill-Marks I. The majority of this panel agreed
that the law-of-the-case doctrine applied because the previous panel stated in its opinion that
plaintiff had established her prima facie case under the WPA. In our previous opinion, a majority
of the panel in this case, therefore, reversed the trial court’s summary disposition decision in favor
of MMCG and remanded for further proceedings consistent with its opinion. One member of the
panel, in a dissenting opinion, disagreed that the previous McNeill-Marks I panel’s de novo review
and pronouncement that plaintiff established her prima facie case actually involved consideration
and decision on the issue whether plaintiff made a “report” or engaged in “reporting” as required
under the WPA.
MMCG sought leave to appeal to our Supreme Court which, as previously stated, reversed
and remanded. Our Supreme Court directed that we consider “the question whether plaintiff’s
communication to her attorney satisfied the reporting requirement of MCL 15.362” because it had
not been “actually decided, explicitly or implicitly in the prior appeal, . . . nor was it necessarily
determined . . . .” McNeill-Marks, ___ Mich at ___ (citations omitted).
II. STANDARDS OF REVIEW
We review de novo a trial court’s summary disposition decision. Rory v Continental Ins
Co, 473 Mich 457, 464; 703 NW2d 23 (2005). “A motion under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817
(1999). When considering a motion under MCR 2.116(C)(10), courts must consider the affidavits,
pleadings, depositions, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 206; 815 NW2d
412 (2012). Summary disposition under MCR 2.116(C)(10) is proper if no genuine issue regarding
any material fact exists and the movant is entitled to judgment as a matter of law. Bazzi v Sentinel
Ins Co, 502 Mich 390, 398; 919 NW2d 20 (2018). A genuine issue of material fact exists “when
reasonable minds could differ on an issue after viewing the record in the light most favorable to
the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
2
McNeill-Marks v MidMichigan Medical Center-Gratiot, 502 Mich 851; 912 NW2d 181 (2018).
3
McNeill-Marks v MidMichigan Medical Center-Gratiot, 503 Mich 854; 915 NW2d 888 (2018).
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We review de novo whether evidence established a prima facie case under the WPA which is a
question of law. Hays v Lutheran Soc Servs of Mich, 300 Mich App 54, 59; 832 NW2d 433 (2013).
“As a matter of statutory interpretation, the definition of ‘report’ is a question of law we review de
novo.” Id. (citation omitted). We review de novo a trial court’s interpretation and application of
a statute which is also a question of law. Eggleston v Bio–Medical Applications of Detroit, Inc,
468 Mich 29, 32; 658 NW2d 139 (2003).
III. ANALYSIS
We are tasked with determining whether plaintiff made a “report” when she told her
attorney that Marcia Fields violated the personal protection order (PPO) that required Fields to
refrain from stalking plaintiff. In McNeill-Marks I, after ruling that plaintiff’s attorney met the
statutory definition of a “public body” for purposes of the WPA, McNeill-Marks I, 316 Mich App
at 23, the Court did not elaborate on the meaning of the term “report” as used in the WPA. In
Rivera v SVRC Industries, Inc, 327 Mich App 446; 934 NW2d 286 (2019), however, this Court
had occasion to consider whether the plaintiff’s communications with her employer’s attorney
constituted a “report” within the meaning of MCL 15.362. Id. at 451-453. This Court analyzed
whether the plaintiff made a “report” sufficient to establish the protected-activity element of her
prima facie case. The Rivera Court ruled that the trial court failed to thoroughly analyze the nature
of the plaintiff’s conversation with her employer’s attorney regarding whether it constituted a
“report” of a violation or suspected violation of law as required under the WPA and had erred by
reaching the conclusion that she had. Id. at 462.
Citing Henry v City of Detroit, 234 Mich App 405, 410; 594 NW2d 107 (1999), the Rivera
Court explained that the making of a “report” for WPA purposes requires that the plaintiff, on her
own initiative, communicates to a public body the wrongful conduct with the purpose of bringing
the “as yet hidden, violation to light . . . .” Rivera, 327 Mich App at 462 (quotation marks omitted).
Because she spoke to her employer’s attorney at her employer’s request, the plaintiff “was not an
‘initiator’ and did not ‘take[] it upon [herself]’ to communicate with” the employer’s attorney. Id.
at 462-463 (citation omitted). The Rivera Court also concluded that the plaintiff’s communication
with her employer’s attorney did not constitute “reporting” under the WPA because she merely
told him what she told the employer, such that, the information was not disclosed for the first time.
Id. at 463.
Because the WPA does not define the term “report,” the Rivera Court consulted dictionary
definitions to determine the plain and ordinary meaning of the term. Id. It concluded that, although
“report” has many definitions, “the definitions most applicable in the context of the WPA are ‘to
make a charge against’ or ‘to make known the presence, absence, condition, etc.’ of something.”
Id. at 463-464. It stated:
In other words, under the WPA, a plaintiff “reports” a violation of the law when he
or she “makes a charge” of illegality against a person or entity or “makes known”
to a public body pertinent information related to illegality. Plaintiff in this case did
neither in her conversation with [her employer’s attorney]. Her discussion with
[him] cannot reasonably be seen as “charging” LS with illegal conduct, and plaintiff
did not make anything known to [her employer’s attorney] that he did not already
know by virtue of plaintiff’s earlier communications with [her employer]. We
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conclude that plaintiff, at most, communicated an illegality to a person falling under
the broad definition of “public body” and did not engage in protected activity under
the WPA. [Id. at 464 (quotation marks, alteration, and citation omitted).]
The Rivera Court acknowledged that under McNeill-Marks I, an attorney may constitute a
“public body” for WPA purposes, but explained that the determination whether a plaintiff made a
“report” requires analysis of the nature of the communications with the attorney:
“A lawyer is an agent, to whom clients entrust matters, property, and information,
which may be of great importance and sensitivity, and whose work is usually not
subject to detailed client supervision because of its complexity.” See 1 Restatement
Law Governing Lawyers, 3d, Introductory Note, p 124. “[F]undamental to the
existence of an agency relationship is the right to control the conduct of the agent
with respect to the matters entrusted to him.” St Clair Intermediate Sch Dist v
Intermediate Ed Ass’n/Mich Ed Ass’n, 458 Mich 540, 557-558, 581 NW2d 707
(1998) (citation omitted). Therefore, when plaintiff communicated with [her
employer’s attorney] at defendant’s direction, she was, in essence, again
communicating with [her employer’s attorney’s] principal, i.e., [her employer].
Plaintiff’s communication with [her employer’s attorney] cannot reasonably be
termed “an attempt to bring the, as yet hidden, violation to light to remedy the
situation or harm done by the violation,” Henry, 234 Mich App at 410, when (1)
plaintiff had already imparted the information directly to [her employer], (2) [her
employer] had already shared the information with [her employer’s attorney], and
(3) in further speaking with [her employer’s attorney], plaintiff merely repeated the
same information to [her employer’s] agent. Consequently, plaintiff’s
communication with [the employer’s attorney] was not a “reporting” of information
under the WPA.
To conclude otherwise would be to transform what was a nonactionable
communication (i.e., plaintiff’s communication with [her employer], which is not
a “public body” under the WPA) into an actionable one merely because, at [her
employer’s] behest, plaintiff reconveyed the same information to [her employer’s]
attorney-agent. We cannot endorse such a strained reading of the “reporting”
requirement of the protected-activity element under the WPA. [Id. at 464-465.4]
The Rivera Court clarified that a person making a claim under the WPA must establish that
she initiated making a “report” which must involve “the making of a charge against” or the
“making known” a violation or suspected violation of law. Further, an attorney who merely fits
the broad definition of a “public body,” by virtue of participation in the profession, does not suffice
for making a “report” to a “public body” for WPA purposes. When a person claims whistleblower
status based on an allegation that a communication with an attorney constituted a “report,” Rivera
4
In a footnote, this Court also clarified that the plaintiff communicated information about an
employee’s statements that she perceived as threatening, but she never clearly indicated that she
communicated about an illegality or a suspected illegality. Id. at 464 n 6.
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instructs that trial courts must engage in a deeper analysis of the particular facts and circumstances
of the communication.
Turning to the facts of this case, plaintiff testified that as she emerged from an operating
room in the hospital at which she worked, she stated “Hello” to persons coincidentally in the
hallway. Fields, who happened to be a hospital patient being transported in a wheelchair in the
vicinity, responded, “Hello, Tammy,” in a manner that caused plaintiff emotional distress because
she feared that Fields discovered where she worked in the hospital which made her vulnerable and
possibly her fellow employees unsafe. Plaintiff called her supervisor, who knew of the PPO
against Fields, and informed her of the incident. McNeill-Marks I, 316 Mich App at 8-10.
Plaintiff next called her personal attorney regarding the incident. During their
conversation, plaintiff instructed her attorney not to serve the newly entered PPO on Fields.
Unknown to plaintiff and contrary to plaintiff’s directive to her attorney, a process server later
served Fields the PPO in her hospital room. The record reflects that Fields complained to MMCG
and alleged that plaintiff violated HIPPA, which caused MMCG to investigate and ultimately
terminate plaintiff for violating HIPPA and MMCG’s privacy policies because of her telephone
conversation with her attorney. Id. at 10-13.
The record indicates that plaintiff, on her own initiative, communicated to her personal
attorney Fields’s potentially illegal conduct. Plaintiff made known to her attorney Fields’s
conduct, but the record establishes that at the time of that communication she did not do so for
purposes of making a charge of illegality against Fields “to remedy the situation or harm done by
the violation[.]” Henry, 234 Mich App at 410. Applying the principles articulated in Henry and
Rivera, plaintiff did not make a “report” as envisioned by the WPA. Her communication lacked
the purposeful intent necessary for qualification as a “report” for WPA purposes. She informed
her personal attorney but intended no action be taken. Her attorney agreed to honor her direction.
Plaintiff contends that she reported to her attorney as an officer of the court and
intermediary who could inform the circuit court of Fields’s violation of law because an existing
PPO prohibited Fields from contacting or communicating with plaintiff. That explanation casts
an after-the-fact interpretive gloss on the actual content of her communication with her attorney.
Plaintiff’s sworn testimony of her expressed desire that her attorney do nothing, undermines her
claim that she made a “report” for WPA purposes. Accordingly, the trial court correctly held that
plaintiff failed to make a “report” under the WPA, and therefore, did not err by granting MMCG’s
motion for summary disposition as a matter of law.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael J. Riordan
/s/ James Robert Redford
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