The Sophisticated Employer Blog

A recent Michigan Court of Appeals' published decision should give employers a moment of pause whenever they are informed by an employee that he or she has consulted with an attorney – particularly in whistleblower situations.   

In McNeil-Marks v MidMichigan Medical Center-Gratiot, the Michigan Court of Appeals held that an attorney is a “public body” member under the Michigan Whistleblower’s Protection Act (WPA).

The plaintiff was employed by MidMichigan Medical Center-Gratiot (MMCG). She obtained a personal protection order (PPO) against her grandmother, Marcia Fields, after Fields allegedly threatened to kill her and her children. 

Several weeks later after the PPO was extended for a one-year period, Fields was admitted to MMCG as a patient. Fields was being transported in a wheelchair when she passed the plaintiff and said “Hello, Tammy” in what the plaintiff described as a “sing-songy voice.”  After the encounter, the plaintiff immediately went into a break room and was visibly upset and shaking.

She called her attorney and told him that “Fields showed up today at my workplace,” but did not specifically say she was there as a patient or that she had been in a wheelchair. The plaintiff instructed her attorney to not serve Fields with the latest PPO, and the attorney testified that while he was aware that Fields approached the plaintiff at a hospital in violation of the PPO, he did not know she was a patient.

Later that night, Fields was served with the renewed PPO while a patient at MMCG and in her hospital room. Immediately thereafter, Fields and her family reported the incident to MMCG as a suspected violation of federal privacy regulations, specifically those under the Health Insurance Portability and Accountability Act (“HIPPA”). MMCG’s privacy officer conducted an investigation into the matter and concluded that the plaintiff violated HIPPA and MMCG’s privacy policy. As a result, the plaintiff was terminated. 

The plaintiff filed suit and alleged that her termination violated Michigan’s Whistleblowers Protection Act and Michigan public policy. In sum, the plaintiff alleged that she was terminated for reporting Fields’ violation of the PPO to her attorney, or for being about to report that violation to the circuit court. The trial court dismissed the case, concluding that: (1) the plaintiff’s telephone conversation with her attorney was not “A communication to a public body; and (2) Fields’ conduct did not violate the PPO and it was unreasonable for the plaintiff to suspect that such conduct violated the PPO; and (3) the public policy claim failed because there was no request by the hospital to conceal or hide the existence of a crime.

On appeal, the Michigan Court of Appeals disagreed with the trial court’s reasoning and found that the plaintiff was afforded the protection of the WPA as long as she, in good faith, reported, or was about to report, a suspected violation to a public body. Thus, the critical inquiry was whether the plaintiff reported the suspected illegal conduct to a public body before she was terminated or was about to at the time of her termination.

Importantly, the WPA defines “public body” as “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….” The appellate court concluded that the plaintiff’s attorney fit squarely within this definition, holding in pertinent part that:

“[U]nder the plain language of the WPA. . . Gay qualified as a member of
a ‘public body’ for WPA purposes.  As a practicing attorney and member
of the [Michigan Bar Association], Gay was a member of a body ‘created by’
state authority, which, through the regulation of our Supreme Court, is also
‘primarily funded by or through’ state authority.  By holding otherwise, the
trial court erred.”

The key takeaway for employers: be very, very careful when an employee advises you that they’ve spoken “with an attorney” about perceived or suspected illegal conduct.

The Michigan Court of Appeals has now unequivocally concluded that an attorney who is a member of the Michigan Bar Association fits squarely within the statutory definition of a “public body,” thus allowing an employee to satisfy the “protected activity” element of a WPA claim by simply making a phone call to a friend in the right place.