High court reverses 2020 whistleblower decision

Justices rule report to attorney was protective activity under WPA

By Kelly Caplan
BridgeTower Media Newswires
 
A 2020 whistleblower decision that split a Court of Appeals panel has been reversed by the Michigan Supreme Court.

In McNeill-Marks v. MidMichigan Medical Center-Gratiot a 2-1 appellate majority held that dismissal of Tammy McNeill-Marks’s claim under the Whistleblowers’ Protection Act was erroneous because the law-of-the-case doctrine precluded the trial court from deciding whether she made a “report” to a member of a public body.

Judges Michael J. Riordan and James Robert Redford said that her “‘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.”

But in his dissent, Judge Mark T. Boonstra noted that “this Court did not, in its prior opinion in this case, either explicitly or implicitly decide the issue that is now before us. ... I would hold that, not being bound by the law-of-the-case doctrine on that issue, the trial court correctly concluded that plaintiff did not engage in ‘reporting’ under the Whistleblowers’ Protection Act (WPA).”

On remand, that’s the remaining issue for the appeals court to tackle.

“As noted by dissenting Judge Boonstra, the question whether the plaintiff’s communication to her attorney satisfied the reporting requirement of MCL 15.362 was not actually decided, explicitly or implicitly, in the prior appeal …, nor was it necessarily determined in order for the Court of Appeals to arrive at its decision,” the justices wrote.

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2020 decision

Last year, the Gratiot County Circuit Court granted defendant MidMichigan Medical Center-Gratiot’s motion for summary disposition and dismissed McNeill-Marks’s lawsuit against her former employer.

In an unpublished decision, the appeals court majority reversed.

“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,” the 2020 panel wrote. “McNeill-Marks, 316 Mich App 1, therefore, is dispositive of this issue and this Court may not revisit it and rule differently.”

In a lengthy dissent, Boonstra said “we judges are not always prescient about all issues that might arise,” and that “we sometimes belatedly realize that we have used language that in retrospect is broader than what we would have used with perfect knowledge of the future.”

And when that happens, judges “should not rotely and mechanically apply the law-of-the-case doctrine to compel a result that was not intended. We should instead be guided by judicial realities, common sense, and the interests of justice.”

As such, he said, the trial court got it right when it held that McNeill-Marks did not engage in “reporting” under the WPA and that MidMichigan Medical Center-Gratiot was entitled to summary disposition.

The original ruling

The Court of Appeals first issued a published decision in this case back in 2016. The crucial question then was whether McNeill-Marks made a report to a public body before she was terminated or about to be terminated.
A Gratiot County circuit judge held she did not, saying her telephone conversation with her attorney, Richard Gay, was not “a communication to a public body.”

But the 2016 panel of Judges Kurtis T. Wilder, David W. Sawyer and Joel P. Hoekstra reversed the decision, saying fact issues remained whether McNeill-Marks’s report was a motivating factor in her employer’s decision to fire her.
“[U]nder the plain language of the WPA, specifically MCL 15.361(d)(iv), Gay qualified as a member of a ‘public body’ for WPA purposes,” the judges wrote. “As a practicing attorney and member of the SBM, 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.”

The trial court also erred by holding that a report to a public body is a “necessary prerequisite to establish a prima facie case under the WPA.”

But a report to a public body is just one of the three types of “protected activity” under the WPA. McNeill-Marks had presented plenty of evidence to prove a prima facie case, the judges said.

Her report to her attorney was protected activity under the WPA and fulfills the first element for a prima facie case. The second was met by the fact that she was terminated.

“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 [Corp v. Green] framework.”


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