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McNeill-Marks v. Center-Gratiot

Supreme Court of Michigan

June 15, 2018

TAMMY McNEILL-MARKS, Plaintiff-Appellee,

          Gratiot CC: 14-011876-NZ

          Stephen J. Markman, Chief Justice, Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement, Justices.


         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.


         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]


         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 with her private attorney was "reporting" under the WPA.


         Statutory interpretation begins with an examination of the statutory text.[14] We give the words used in a statute their ordinary meaning, unless the statute specifically defines a given term.[15] When a statutory definition is provided, that definition controls over any ordinary or plain meaning that may otherwise apply to the term or phrase defined by statute.[16] "The primary rule of statutory construction is that, where the statutory language is clear and unambiguous, the statute must be applied as written."[17]"A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself."[18] When engaging in statutory interpretation, courts must construe the text as a whole.[19]

         A statutory term or phrase cannot be read in isolation, but must be construed in accordance with the surrounding text and statutory scheme.[20] The WPA prohibits an employer from firing an employee "because the employee, or a person acting on behalf of the employee, reports or is about to report . . . a violation or a suspected violation of a law . . . to a public body . . . ."[21] The subject of this dependent clause is the whistleblower employee[22] or "a person acting on behalf of the employee" (discussed more below). At issue here, the Legislature uses the term "report" as a transitive verb, which means something must be reported.[23] That something-a direct object-is "a violation or suspected violation of a law" (for short, the "illegality"). The illegality, as a direct object, provides meaning to the verb "report." The receiver of the reported illegality-an indirect object-is a "public body" defined under MCL 15.361(d). The Legislature's express designation of a "public body" as the receiver of the reported illegality presumes that the governmental entity can address or cure the illegality through some governmental function.

         The term "report" is undefined in the WPA and, accordingly, must be interpreted in light of its context within the WPA. If a statute does not define a term, it is appropriate to consult dictionary definitions to determine the plain and ordinary meaning of the term.[24] The term "report"-like most words in the English language-is polysemous. For illustration, a dictionary contemporaneous with the WPA's enactment provides 13 definitions of the verb "report" (both transitive and intransitive).[25] The multitude of meanings for "report" underscores the importance of reading "report" in the context of the WPA. Reading the WPA as a whole, the most pertinent definitions of the verb "report" are "to denounce to a person in authority"[26] or "to make a charge of misconduct against."[27] These definitions comport with the sentence structure of MCL 15.362: the whistleblower employee (subject) must report (transitive verb) an illegality (direct object) to a public body (indirect object). Thus, the ordinary meaning of "report" under the WPA requires that the whistleblower employee intend to denounce an illegality or make a charge of misconduct to a "public body."

         The Court of Appeals failed to give meaning to the term "report" under the WPA. The panel assumed that plaintiff's communication with her attorney was reporting. "It is undisputed that Gay was a licensed Michigan attorney and a member in good standing of the [SBM] when plaintiff called him and reported her contact with Fields."[28] But an employee that simply communicates an illegality to a person falling under the broad definition of "public body" has not engaged in protected activity under the WPA. Giving the term "report" such broad meaning would ignore the textual requirements for a protected activity and would not further the purported purposes of the WPA. The WPA contains no textual basis for adopting the broadest definition for the undefined term "report."[29]

         Other Court of Appeals panels have properly given meaning to "report" under the WPA. In Henry v Detroit, [30] the Detroit Police Department formed a review board to investigate the highly publicized death of Malice Green. The department's internal policy defined the role and obligations of the board, but the police chief gave orders effectively precluding the board from performing its obligations. The plaintiff police commander gave deposition testimony in a civil suit brought by another officer that the board was not allowed to perform its obligations. Shortly thereafter, the plaintiff was given the "choice" of either a demotion or taking an early retirement. The plaintiff brought a WPA action against the city and the police chief, in which the jury found that the defendants had retaliated against the plaintiff for his deposition testimony. The Henry panel, characterizing the plaintiff as a "type 1 whistleblower, "[31] stated: "On the basis of the plain language of the WPA, we interpret a type 1 whistleblower to be one who, on his own initiative, takes it upon himself to communicate the employer's wrongful conduct to a public body in an attempt to bring the, as yet hidden, violation to light to remedy the situation or harm done by the violation. In other words, we see type 1 whistleblowers as initiators . . . ."[32] The panel held that the plaintiff's deposition testimony was not a report because the plaintiff "took no initiative to communicate the violation to a public body" and "was deposed in a private civil suit previously filed by a fellow officer."[33]

         Another illustrative case is Hays v Lutheran Social Servs of Mich.[34] The plaintiff employee worked as a home-healthcare provider. During her work, the plaintiff encountered a client that smoked marijuana in his home and within her presence. The plaintiff called the police inquiring about potential criminal consequences of failing to disclose another person's illegal drug use. When the police asked if she wanted to take any action, the plaintiff declined to do so. She was subsequently fired by her employer for violating her client confidentiality agreement. The Hays panel held that the plaintiff's communication with the police was not "reporting" under the WPA. The panel used the dictionary definition of the noun "report, " which is " 'a detailed account of an event, situation, etc., [usually] based on observation or inquiry.' "[35] The panel analyzed the plaintiff's communication as follows:

[P]laintiff called the . . . officer to inquire about her potential liability if Client A's behavior was discovered, not to report any illegal behavior. Plaintiff did not provide any particulars or otherwise convey information that could have assisted the . . . officer in actually investigating any wrongdoing. There is no evidence that plaintiff identified herself, Client A, or Client A's location, nor did she provide any sort of detailed account of the situation. She did not even appear to specify the type of "illegal drugs" at issue. Thus, rather than providing a "detailed account of an event, situation, etc., " plaintiff was merely seeking to obtain information and advice. [Hays, 300 Mich.App. at 60.]

         Although it erred by using the nounal definition of "report, " the panel correctly examined the meaning of "report." Specifically, the panel understood that a whistleblower employee's communication with a public body is not enough for reporting an illegality under the WPA. These illustrative cases support my conclusion that "report" under the WPA requires that the whistleblower employee ...

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