Opinion
No. 348987
05-21-2020
TAMMY MCNEILL-MARKS, Plaintiff-Appellant, v. MIDMICHIGAN MEDICAL CENTER-GRATIOT, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Gratiot Circuit Court
LC No. 14-011876-NZ Before: BOONSTRA, P.J., and RIORDAN and REDFORD, JJ. PER CURIAM.
Plaintiff appeals by right the trial court's order granting defendant's motion for summary disposition and dismissal of her lawsuit against her former employer, defendant, MidMichigan Medical Center-Gratiot (MMCG). We reverse.
I. BACKGROUND
MMCG discharged plaintiff from her position as clinical manager of perioperative services and ambulatory care and she sued alleging that it terminated her employment in violation of the Whistleblowers' Protection Act (WPA), MCL 15.361 et seq. and in violation of public policy. The trial court previously granted defendant summary disposition and plaintiff appealed that order to this Court which affirmed in part and reversed in part and remanded to the trial court for further proceedings in a published opinion. See McNeill-Marks v MidMichigan Medical Center-Gratiot, 316 Mich App 1; 891 NW2d 528 (2016).
Sometime before the incident that caused MMCG to terminate plaintiff, she obtained personal protection orders (PPOs) that prohibited contact by Marcia Fields, the mother of plaintiff's second cousin whose children plaintiff adopted, because Fields had threatened plaintiff, the children, and plaintiff's biological children. Fields violated the various PPOs several times. During December 2013, plaintiff moved for and the circuit court granted the extension of a PPO that was nearing its expiration. The PPO ordered Fields to refrain from stalking plaintiff as defined under MCL 750.411h and MCL 750.411i. Among other things, the PPO prohibited Fields from appearing within sight of plaintiff, appearing at plaintiff's workplace, confronting plaintiff, contacting plaintiff in any manner, and posting a message through any medium of communication including electronic media.
In late December 2013, while at work, plaintiff exited an operating room and encountered Fields in the hallway at MMCG. Fields said "Hello, Tammy" to plaintiff in a manner that upset plaintiff and raised her fears that Fields, now knowing where she worked in the hospital, might do something to endanger plaintiff and her fellow employees. Plaintiff did not know that Fields had been admitted as a patient. Plaintiff contacted her supervisor who knew of the PPO and informed her of the contact with Fields. Id. at 6-10. After speaking with the supervisor, plaintiff called her attorney to notify him that Fields appeared at her workplace. Plaintiff directed him to do nothing in response. Later that evening, the attorney's secretary and her boyfriend, who happened to be the attorney's process server, visited another patient at MMCG's intensive care unit and saw Fields there. The secretary and the process server knew that the renewed PPO had not been served. The process server later returned to the hospital during regular visiting hours, asked at the hospital desk for Fields's room number, was provided the room number by hospital staff, went to her room and effectuated service of the PPO on Fields. Id. at 10-11. Fields reported to MMCG that she had been served the PPO and that she suspected a violation of HIPAA which caused MMCG to initiate an investigation that led to its termination of plaintiff for violating HIPAA and MMCG's privacy policies on the ground that plaintiff disclosed to her attorney Fields's patient status in their phone conversation. Id. at 11-13.
Health and Insurance Portability and Accountability Act, codified at 29 USC 1181 et seq., 42 USC 300gg , and 42 USC 1320d et seq.
Plaintiff sued MMCG and following discovery MMCG moved for summary disposition which the trial court granted prompting plaintiff to appeal. This Court held that, contrary to the trial court's conclusion, Fields's conduct constituted stalking in violation of the PPO, and if plaintiff reported such conduct to a public body or was about to do so, the WPA afforded her protection. Id. at 20-21. This Court held further that plaintiff's attorney, as a licensed attorney and member of the State Bar of Michigan, constituted a "public body" for purposes of the WPA, and that the trial court erred by holding that plaintiff's attorney was not a member of a public body for WPA purposes. Id. at 21-25.
This Court held that the trial court did not err by dismissing plaintiff's public policy violation claim because the WPA preempted common-law public-policy claims. Id. at 25-26.
The MMCG sought leave in our Supreme Court to appeal this Court's decision. Our Supreme Court ordered the parties to file supplemental briefs to address whether plaintiff's communication with her attorney constituted a report to a public body within the meaning of MCL 15.361(d) and MCL 15.362. McNeill-Marks v MidMichigan Medical Center-Gratiot, 500 Mich 931, 889 NW2d 248 (2017). After conducting oral argument on the application for leave to appeal, our Supreme Court ordered the parties to file another supplemental brief addressing whether plaintiff's communication to her attorney regarding Fields's presence at MMCG amounted to a "report" under MCL 15.362, and "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." McNeill-Marks v MidMichigan Medical Center-Gratiot, 500 Mich 1031; 897 NW2d 176 (2017). Following our Supreme Court's consideration of the parties' supplemental briefs, it denied MMCG's application for leave to appeal. McNeill-Marks v MidMichigan Medical Center-Gratiot, 502 Mich 851; 912 NW2d 181 (2018). MMCG sought reconsideration which our Supreme Court denied. McNeill-Marks v MidMichigan Medical Center-Gratiot, 503 Mich 854; 915 NW2d 888 (2018).
On remand, MMCG moved for summary disposition under MCR 2.116(C)(10) on the ground that plaintiff's communication with her attorney did not constitute a "report" under the WPA. MMCG relied on Justice ZAHRA'S dissent to our Supreme Court's denial of its application for leave to appeal. 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 established her prima facie case under the WPA. At the hearing, the trial court agreed with MMCG that plaintiff's report to her attorney did not fall within the meaning of a "report" under the WPA. Therefore, the trial court granted MMCG's motion.
MMCG made the same arguments to our Supreme Court in its application for leave to appeal and argued the same in its second supplemental brief addressing the issues directed by the Court. Justice ZAHRA'S dissent reflects that he found MMCG's arguments persuasive and his opinion stated a strikingly similar analysis. McNeill-Marks, 502 Mich at 857-867.
II. STANDARDS OF REVIEW
We review de novo questions of law such as whether the law-of-the-case doctrine applied. Ashker ex rel Estate of Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW 1 (2001). 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). 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
Plaintiff argues that the law-of-the-case doctrine applied and precluded MMCG and the trial court from raising, considering, and deciding whether she made a "report" because this Court determined in plaintiff's earlier appeal that she presented sufficient evidence to establish her prima facie case under the WPA, and this Court determined explicitly, or least implicitly, that plaintiff made a "report" to a member of a public body, which constituted protected activity under the WPA. She asserts that, if this Court did not do so, as defendant contends, this Court could not have concluded that she established her prima facie case. We agree.
"The law of the case doctrine provides that a ruling by an appellate court with regard to a particular issue binds the appellate court and all lower tribunals with respect to that issue, but only if the facts remain materially the same." Brownlow v McCall Enterprises, Inc, 315 Mich App 103, 110; 888 NW2d 295 (2016) (quotation marks and citation omitted). The rationale of the law-of-the-case doctrine "is the need for finality of judgments and the lack of jurisdiction of an appellate court to modify its judgments except on rehearing." Id. at 110-111 (quotation marks and citation omitted). "Under the law of the case doctrine, if an appellate court has passed on a legal question and remanded the case for further proceedings, the legal questions thus determined by the appellate court will not be differently determined on a subsequent appeal in the same case where the facts remain materially the same." Grievance Administrator v Lopatin, 462 Mich 235, 259; 612 NW2d 120 (2000) (quotation marks and citation omitted). The law-of-the-case doctrine applies "only to issues actually decided, either implicitly or explicitly, in the prior appeal." Id. at 260 (citations omitted). The law-of-the-case doctrine, however, "does not preclude reconsideration of a question if there has been an intervening change of law. For this exception to apply, the change of law must occur after the initial decision of the appellate court." Ashker, 245 Mich App at 13 (citations omitted). Once this Court has concluded in an earlier appeal that the plaintiff established a prima facie case on elements of her claim sufficient to warrant a trial, the plaintiff is entitled to prove the case at trial. Brownlow, 315 Mich App at 115 (concluding that the law-of-the-case doctrine applied and precluded the defendant from relitigating the issue of causation following remand after this Court determined in the earlier appeal in the same case that, as a matter of law, the Michigan Consumer Protection Act, MCL 445.901 et seq., applied to the case, and that the plaintiffs sufficiently established a prima facie case of causation so that the issue should go to a jury).
"The law of the case doctrine has been described as discretionary—as a general practice by the courts to avoid inconsistent judgments—as opposed to a limit on the power of the courts." Duncan v Michigan, 300 Mich App 176, 189; 832 NW2d 761 (2013) (citation omitted). "However, these decisions also acknowledge this Court's mandatory obligation to apply the doctrine when there has been no material change in the facts or intervening change in the law." Id. (citations omitted). "Even if the prior decision was erroneous, that alone is insufficient to avoid application of the law of the case doctrine." Id. (citations omitted). Under the law-of-the-case doctrine, "a decision of an appellate court is controlling at all subsequent stages of the litigation as long as it is unaffected by a higher court's opinion." Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d 787 (1995). "Further, a question of law decided by an appellate court will not be decided differently on a subsequent appeal in the same case where the facts remain materially the same." Id.
Whether the law-of-the-case doctrine applied in this case requires close examination of this Court's previous opinion. In McNeill-Marks, 316 Mich App at 16 (quotation marks and citation omitted), this Court stated the three elements a whistleblower claimant must show to establish her prima facie case: "that (1) the plaintiff was engaged in a protected activity as defined by the WPA, (2) the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge." This Court explained that the first element required evidence that plaintiff engaged in protected activity which "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." Id. at 16-17 (citation omitted). This Court clarified that the first two types of activities are protected if the employee acted in good faith by not knowingly making a false report. Id. at 17. This Court explained further that "the violation or suspected violation at issue need not be one committed by the employer or one of the plaintiff's coworkers; rather, the scope of the WPA is broad enough to cover violations of the law by a third person." Id. (citations omitted). This Court stated that a plaintiff may rely on direct or indirect evidence of retaliation to establish the second element of her prima facie case. Id.
This Court next analyzed the trial court's dismissal of plaintiff's WPA claim. This Court held that the trial court committed reversible error by concluding that "it was immaterial whether the plaintiff made a report regarding Fields's conduct to a 'public body' before she was terminated, or was about to make such a report, because Fields's conduct did not violate an existing PPO. . . . [and] that plaintiff could not have reasonably believed that Fields's conduct violated an existing PPO." Id. at 18. This Court explained that the record indicated that an existing PPO prohibited Fields from stalking plaintiff and described how the term "stalking" is defined under MCL 750.411h and MCL 750.411i. Id. at 19.
This Court concluded that, viewing the evidence in a light most favorable to plaintiff, Fields's deliberate and willful communication with plaintiff qualified as stalking in violation of the PPO. Id. at 20. This Court explained that, even if not an actual violation of the PPO, the WPA still afforded plaintiff protection so long as she reported or was about to report in good faith a suspected violation of the PPO. Id. at 21. This Court found that no evidence established that plaintiff acted in bad faith. Id. This Court stated that "if plaintiff reported such conduct to a public body, or was about to do so, she engaged in protected activity under the WPA." Id. This Court opined that the "crucial inquiry is whether plaintiff reported Fields's conduct to a public body before she was terminated or was about to do so at the time of termination." Id. In so stating, this Court expressed its recognition that plaintiff had to have made a "report" to establish her prima facie case under the WPA. This Court disagreed with the trial court's reasoning that plaintiff's telephone conversation with her attorney "was not 'a communication to a public body.' " Id. This Court next considered whether plaintiff's attorney met the statutory definition of a "public body" and concluded that he qualified as a member of a "public body" under the plain language of the WPA which established that she engaged in protected activity under the WPA. Id. at 23.
In other words, two alternative inquiries were applicable to discern whether plaintiff could establish a prima facie case: (1)(a) did plaintiff report Fields's conduct, (b) to a public body, (c) before her termination; or (2)(a) was plaintiff about to report Fields's conduct, (b) to a public body, (c) at the time of her termination.
This Court's quotation of the trial court draws attention to the specific language that the trial court used. The trial court characterized plaintiff's call as a "communication" not a "report." By drawing attention to the trial court's language choice, this Court conveyed not only that the trial court erroneously concluded that plaintiff's attorney did not constitute a "public body," but also that the trial court mischaracterized plaintiff's conduct as a mere communication of conduct that did not violate any law, minimizing the nature of Fields's conduct and plaintiff's action to support its erroneous conclusion that plaintiff never engaged in protected activity.
This Court's opinion indicates that it considered the WPA and caselaw that interpreted and explained the requirements to establish a prima facie case. This Court thoroughly examined the trial court proceedings and the record before it. Although this Court did not elaborate on the meaning of the term "report" as used in the WPA, one cannot reasonably conclude that this Court lacked understanding of the term's meaning, failed to recognize the WPA's "report" requirement, neglected to consider whether plaintiff made a "report," and merely assumed without analysis that plaintiff made a "report." This Court's summation of its ruling in the following passage establishes the fallacy of MMCG's argument:
Having reviewed the record evidence in the light most favorable to plaintiff, we conclude that she presented sufficient evidence to establish a prima facie case under the WPA. As we have already discussed, her report to Gay was a report to a member of a public body, and therefore it was protected activity under the WPA, which satisfies the first element for a prima facie case. Moreover, the second element is satisfied by the fact that plaintiff was discharged. Finally, plaintiff has presented direct evidence supporting the third element—i.e., a causal connection between the discharge and the report to Gay—specifically the "Corrective Action and Disciplinary Form," which explicitly cites plaintiff's telephone conversation with Gay as a factor motivating MMCG's discharge decision. Given such direct evidence of unlawful retaliation, plaintiff is not required to proceed under the McDonnell Douglas framework. See DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 539-540; 620 NW2d 836 (2001) ("Where direct evidence is offered to prove discrimination, a plaintiff is not required to establish a prima facie case within the McDonnell Douglas framework, and the case should proceed as an ordinary civil matter.") (quotation marks and citation omitted). Likewise, the direct evidence presented by plaintiff is sufficient to survive summary disposition despite the legitimate reason MMCG offers for its action—that it suspected plaintiff of violating HIPAA by disclosing Fields's patient status. Given the record evidence, even if HIPAA concerns were part of MMCG's ultimate decision, "a reasonable fact-finder could still conclude that . . . plaintiff's protected activity was a 'motivating factor' for [MMCG]'s adverse action." See Debano-Griffin [v Lake County], 493 Mich [167,] 176[; 828 NW2d 634 (2013)], quoting Hazle [v Ford Motor Co], 464 Mich [456,] 465[; 628 NW2d 515 (2001)].
Therefore, regarding plaintiff's WPA claim, the trial court erred by granting summary disposition to MMCG under MCR 2.116(C)(10). A genuine issue of material fact remains about whether plaintiff's report of Fields's conduct to Gay was a motivating factor in MMCG's decision to terminate plaintiff. [Id. at 24-25.]
This Court's opinion plainly reveals that it reviewed the record evidence and considered the substantive merits of this case. Based upon that review and consideration of the applicable law, this Court held that plaintiff made a "report," and that she directed her "report" to her attorney who constituted a public body under the WPA. This Court concluded that plaintiff's "report" to her attorney established that she engaged in protected activity, a necessary component for her establishment of the first element of her WPA claim. This Court also held that plaintiff established the two other elements of her prima facie case with direct evidence sufficient to proceed without having to engage in the McDonnell Douglas burden shifting framework. This Court held that a genuine issue of material fact existed regarding whether plaintiff's "report" of Fields's conduct to her attorney was a motivating factor in MMCG's decision to terminate her. This Court made clear that that issue alone remained, and that plaintiff's case should proceed to trial. This Court directed the trial court to conduct further proceedings consistent with this Court's opinion.
For its contention that the law-of-the-case doctrine did not apply, MMCG essentially argues that this Court's opinion only decided that plaintiff's attorney constituted a "public body," but all the rest of this Court's opinion must be disregarded either as irrelevant or meaningless information with no bearing on the merits of this case. MMCG's position is neither logical nor a permissible reading because it negates the ultimate conclusion on the merits stated by this Court, that plaintiff engaged in activity protected under the WPA and established her prima facie case, leaving for trial only the determination whether plaintiff's protected activity constituted a motivating factor for MMCG termination decision.
This Court's opinion does not lend itself to an interpretation that it based its decision on an unsupported assumption regarding the fulfillment of the "report" requirement. It is axiomatic that, had this Court not definitively determined that plaintiff made a "report" (as is clearly indicated by its opinion), this Court could not have held that she presented sufficient evidence to satisfy her prima facie case, particularly that she established the protected activity element. Plaintiff correctly points out that she could not establish her prima facie case if she failed to make a report, and therefore, this Court obviously did not base its decision on a faulty assumption. On remand, the law-of-the-case doctrine applied and the trial court should have adhered to this Court's determination of matters of law unless the facts materially changed or an intervening change of law occurred.
Close analysis of this Court's opinion does not support MMCG's argument that this Court failed to consider and address whether plaintiff made a report. MMCG relies on Justice ZAHRA'S dissent and an argument based on the composition of our Supreme Court when it denied its application for leave to appeal. MMCG disregards MCR 7.215(C)(2) which addressed the effect of this Court's opinions and provides:
A published opinion of the Court of Appeals has precedential effect under the rule of stare decisis. The filing of an application for leave to appeal to the
Supreme Court or a Supreme Court order granting leave to appeal does not diminish the precedential effect of a published opinion of the Court of Appeals.
In Straman v Lewis, 220 Mich App 448, 451; 559 NW2d 405 (1996), this Court explained:
Thus, the publication of an opinion of this Court creates binding precedent statewide, and, contrary to past practice as reflected by People v Phillips, 416 Mich 63; 330 NW2d 366 (1982), the opinion remains binding "until such time as a decision of the Supreme Court enters altering the lower court decision or questioning its rationale." 6 Martin, Dean & Webster, Michigan Court Rules Practice (3d ed), p 315. See also Michigan Millers Mutual Ins Co v Bronson Plating Co, 197 Mich App 482; 496 NW2d 373 (1992) (holdings of this Court not addressed on the merits by the Supreme Court remain binding despite reversal on other grounds).
MCR 7.215(F)(1)(a) provides:
[T]he Court of Appeals judgment is effective after the expiration of the time for filing an application for leave to appeal to the Supreme Court, or, if such an application is filed, after the disposition of the case by the Supreme Court.
In Johnson v White, 261 Mich App 332, 347; 682 NW2d 505 (2004), this Court explained that MCR 7.215(F)(1)(a) controls the timing when this Court's judgment becomes final regarding the parties to the appeal "and its enforceability with respect to the trial court that presided over the case." In Haksluoto v Mt Clemens Reg Med Ctr, 500 Mich 304, 313 n 3; 901 NW2d 577 (2017), our Supreme Court explained that "denials of leave to appeal do not establish a precedent."
MMCG's reliance on Justice ZAHRA'S dissent to our Supreme Court's denial of its application for leave is misplaced because his dissenting statements were not adopted by the Court and do not have precedential value. Because the law-of-the-case doctrine applied, the trial court was not free to revisit issues previously decided by this Court.
Having concluded that plaintiff satisfied her burden of establishing her prima facie case, the law-of-the-case doctrine applied and no authority permitted defendant to relitigate the issue. The record reflects that the facts of this case did not materially change from the time of this Court's decision to the trial court's consideration of MMCG's motion for summary disposition following remand. Accordingly, the issue then is whether an intervening change of law occurred. In essence, MMCG argues that this Court's decision in Rivera v SVRC Industries, Inc, 327 Mich App 446; 934 NW2d 286 (2019), changed the law by establishing that, as a matter of law, a person cannot make a report to one's own attorney who acts on the client's behalf because the attorney cannot be the recipient of a "report" under the WPA. MMCG argues that, "according to Rivera, a 'report' cannot be made to a party attorney because that attorney stands in the shoes of their client as his or her agent." MMCG's argument lacks merit because Rivera does not stand for that proposition or constitute an intervening change in the law.
In Rivera, this Court considered whether the defendant employer violated the WPA by unlawfully retaliating against the plaintiff when it terminated her employment. The plaintiff sued her employer alleging that it violated MCL 15.362 by retaliating against her because (1) she was about to report to the police another employee's threatening conduct, and (2) she reported the employee's conduct to the employer's attorney who advised her employer not to file a police report on the employer's behalf. The employer moved for summary disposition which the trial court denied and the employer appealed. After oral argument, this Court ordered the parties to supplement their briefing to address whether the plaintiff's communications with her employer's attorney constituted a "report" within the meaning of MCL 15.362. Rivera, 327 Mich App at 451-453.
The employer argued and this Court agreed that the plaintiff presented no evidence that she was "about to report" the threatening employee's conduct to the police. This Court explained the "about to report" aspect of the first element of a prima facie case, the protected-activity element. This Court considered the plaintiff's conduct more akin to the plaintiff in Hays, 300 Mich App at 63-64, who sought advice but declined to make a report, because she never threatened to report the threatening employee's conduct to the police, but merely discussed the option of doing so with various people and never put the employer on notice of making a report of a violation or suspected violation of law. Id. at 459-462.
After explaining the difference between a type 1 and type 2 whistleblower and what a plaintiff must establish to carry her burden to make out a prima facie case of retaliation under the WPA, this Court described the consequence for a plaintiff if she presents either direct or circumstantial evidence of retaliation. This Court explained that, if a plaintiff presented circumstantial evidence of retaliation, the burden shifts to the defendant to rebut the presumption of a causal connection by articulating a legitimate business reason for its adverse employment action, and if it does so, the burden shifts back to the plaintiff to show the existence of a genuine issue of material fact from which a reasonable fact-finder could conclude that plaintiff's protected activity was a motivating factor for the employer's adverse action and its proffered reason was a pretext. Id. at 454-458.
This Court considered whether the plaintiff made a "report" sufficient to establish the protected-activity element of her prima facie case. This Court cited approvingly its holding in McNeill-Marks, 316 Mich App at 23, that practicing attorneys who are members of the State Bar of Michigan are members of a "public body" under MCL 15.361(d)(iv). Id. at 462. This Court, however, ruled that the trial court's reliance on McNeill-Marks for that proposition failed to analyze deeply enough the nature of the plaintiff's conversation with her employer's attorney to discern whether that conversation constituted a "report" of a violation or suspected violation of law as required under the WPA. Id.
This Court explained that the plaintiff did not make a "report" because she "did not 'on [her] own initiative, take[] it upon [herself] to communicate the employer's wrongful conduct to a public body in an attempt to bring the, as yet hidden, violation to light . . . .' " Id. (citing Henry v City of Detroit, 234 Mich App 405, 410; 594 NW2d 107 (1999)). Instead, she spoke to her employer's attorney at her employer's request. Id. This Court pointed out that, when she spoke with the employer's attorney, 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). In other words, mere participation in a conversation initiated by another does not constitute the making a "report" for WPA purposes. This Court also concluded that the plaintiff's communication with her employer's attorney did not constitute "reporting" under the WPA because she merely reiterated to him what she had already told the employer, which meant that the information was not "as yet hidden" and revealed or disclosed in a report when she talked with her employer's attorney. Id. at 463.
This Court noted Justice ZAHRA'S observation in his dissent to our Supreme Court's denial of MMCG's application for leave to appeal that the WPA does not define the term "report" which permitted this Court to consult dictionary definitions to determine the plain and ordinary meaning of the term. Id. The Rivera court then considered appropriate definitions and explained how the plaintiff's conversation with her employer's attorney did not constitute a "report" under the WPA:
McNeill-Marks, 502 Mich 851, 851-868 (ZAHRA J., dissenting).
Although "report" has many definitions, we conclude that 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. Random House Webster's College Dictionary (2000). These definitions comport with Henry's characterization of a type 1 whistleblower. Henry, 234 Mich App at 410. 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 [her employer's attorney] cannot reasonably be seen as "charging" [the threatening employee] with illegal conduct, and plaintiff did not make anything known to [the employer's attorney] that he did not already know by virtue of plaintiff's earlier communications with [her employer]. We conclude that plaintiff, at most, "communicate[d] an illegality to a person falling under the broad definition of 'public body' " and did not engage in protected activity under the WPA.
Further, although [her employer's attorney] may, in general terms, have been a member of a "public body" under McNeill-Marks by virtue of his profession, he was also acting as defendant's agent when plaintiff communicated with him. "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 463-465.]
The trial court therefore erred by concluding that plaintiff had engaged in protected activity by communicating with [her employer's attorney]. But even if we were to find otherwise, we would hold that the trial court erred by concluding that plaintiff carried the burden of showing a causal connection between her communication with [her employer's attorney] and the resulting adverse employment action. As stated earlier, plaintiff admitted that she told [her employer's attorney] what he and [her employer] already knew. Plaintiff offered no evidence before the trial court establishing a causal connection between that communication, which was initiated at [her employer's] request, and her termination. Temporal proximity, without more, is insufficient to prove a causal connection between the protected activity and any adverse employment action. Debano-Griffin [v Lake County], 493 Mich [167,] 177[; 828 NW2d 634 (2013)]. Plaintiff's claims under the WPA are essentially that her reaction to the incident with [the threatening employee] led to [her employer's] decision to terminate her; however, even if true, she presented no evidence even suggesting that any "reporting" she did to [her employer's attorney] played a role in that decision. [Id. at 463-466 (emphasis in original).]
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.
The Rivera court concluded that the plaintiff failed to carry her initial burden of establishing any causal connection between her communication with her employer's attorney and her termination. Id. at 466-467. Therefore, the plaintiff failed and could not establish the first and third elements of her prima facie case.
Close reading of Rivera does not support MMCG's contention that an intervening change in the law occurred that justified the trial court's refusal to apply the law-of-the-case doctrine or justified its decision to ignore this Court's explicit instructions. This Court's Rivera decision did not expressly or impliedly overrule any aspect of McNeill-Marks, 316 Mich App 1. Nowhere in its opinion did this Court even remotely call into question its McNeill-Marks decision or its conclusions regarding plaintiff's establishment of her prima facie case, and in particular, her engagement in protected activity. Rather, this Court confirmed the viability of its holding in McNeill-Marks and left undisturbed its ruling.
Further, this Court provided clarification regarding under what conditions a communication with an attorney does not serve as a "report" under the WPA. Rivera explains that a person making a claim under the WPA must establish that she initiated the communication on which she stakes her claim. A whistleblower claimant cannot rest her claim on having engaged in a conversation initiated or directed by the employer. Rivera also clarified that a WPA claimant cannot rest her claim on a conversation with the employer's agent that merely reiterated information the claimant already disclosed to the employer. Such conversation cannot serve as a "report" because it does not involve "the making of a charge against" or the "making known" a violation or suspected violation of law where the employee already told the employer of her concern. Rivera explains that a communication with the employer's attorney constitutes a communication with the employer because of the agency relationship between the employer and its attorney. Such a communication does not transform an otherwise nonactionable communication into an actionable one because a communication with the employer, as a matter of law, cannot constitute a "report" to a "public body." Further, Rivera clarifies that an attorney who merely fits the broad definition of a "public body," by virtue of participation in the profession, does not suffice because making a "report" to a "public body" for WPA purposes requires more than informing an agent of the employer who, in that relational context, cannot constitute a "public body" since no separation between the employer and the employer's attorney exists in that circumstance. The trial court in Rivera erred by concluding that, under McNeill-Marks, a communication with an employer's attorney can satisfy the "report" to a "public body" requirement simply because the attorney fit the broad category as a member of the legal profession.
Rivera indicates that this Court did not signify in McNeill-Marks that all communications with attorneys, no matter who they represent, categorically constitute "reports" to a "public body" for WPA purposes. On the contrary, when a person claims whistleblower status based on an allegation that a communication with an attorney constituted a "report," Rivera instructs that trial courts must engage in a deeper analysis of the particular facts and circumstances of the communication.
Analysis of Rivera does not permit the conclusion that an intervening change of law occurred between this Court's decision in McNeill-Marks and the trial court's consideration of MMCG's motion for summary disposition after remand. At most, Rivera clarified this Court's McNeill-Marks decision and distinguished it based on the facts presented in the Rivera case. Therefore, because the material facts remained the same in this case and no intervening change of law occurred, the trial court should have applied the law-of-the-case doctrine.
This case is distinguishable from Rivera. Unlike the employee in Rivera, plaintiff initiated making a report to her attorney regarding a violation or suspected violation of law by Fields. According to plaintiff, she reported to him as an attorney officer of the court and intermediary who could inform the circuit court of Fields's violation of law which she herself could not do as a represented party in a pending action. An existing PPO prohibited Fields from contacting or communicating with plaintiff. Plaintiff reported Fields's interaction with her that she believed violated the PPO and anticipated that her attorney would advise the circuit court of Fields's conduct which Fields apparently admitted to that court.
In McNeill-Marks, 316 Mich App 1, this Court considered the substantive merits of this case and held that plaintiff made a "report," directed her "report" to her attorney who constituted a "public body" under the WPA, which activity constituted engaging in protected activity, establishing the first element of her WPA claim. This Court also held that plaintiff established the other elements of her prima facie case with direct evidence sufficient to proceed without having to engage in the McDonnell Douglas framework. Had this Court not definitively determined that plaintiff made a "report," this Court could not have held that she presented sufficient evidence to satisfy all elements of her prima facie case, particularly the protected activity element. Therefore, on remand, the law-of-the-case doctrine applied and the trial court had the obligation to adhere to this Court's determination of the law and follow its instructions because the material facts did not change and no intervening change of law occurred after this Court's initial decision.
Because this Court's published opinion in McNeill-Marks, 316 Mich App 1, has binding precedential effect under the rule of stare decisis, the trial court erred by ruling in this case inconsistent with this Court's ruling on the merits regarding plaintiff's establishment of her prima facie case because, regardless of the correctness of this Court's decision, the trial court was obligated to apply the law-of-the-case doctrine and could not rule contrary to this Court's decision. Sumner v General Motors Corp (After Remand), 245 Mich App 653, 661; 633 NW2d 1 (2001). McNeill-Marks, 316 Mich App 1, therefore, is dispositive of this issue and this Court may not revisit it and rule differently.
Accordingly, we reverse the trial court's grant of summary disposition to MMCG and remand for further proceedings consistent with this opinion and McNeill-Marks, 316 Mich App 1. As the prevailing party, plaintiff may tax costs. MCR 7.219. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ James Robert Redford