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Publications | December 12, 2023
3 minute read

MSC Denies Review Where Whistleblower ‘Reported’ to Own Lawyer

In early December, the Michigan Supreme Court issued an order denying leave to appeal in McNeill-Marks v. MyMichigan Medical Center Alma,* a case involving fundamental questions regarding the meaning and application of Michigan’s Whistleblower Protection Act (WPA). The case was filed by a former hospital employee, Tammy McNeill-Marks, who alleged that her employment was terminated after she engaged in protected activity under the WPA.

McNeill-Marks had a personal protection order against the mother of her adopted children (“Fields”), who had previously threatened McNeill-Marks and her children. After McNeill-Marks encountered Fields at the hospital (because Fields had been admitted as a patient), McNeill-Marks called her personal attorney to notify him that Fields was at her workplace. Later that day, while she was still admitted to the hospital, Fields was served with a renewed personal protection order. Suspecting that McNeill-Marks was responsible, Fields complained to the hospital, and the hospital terminated McNeill-Marks’s employment for violating the Health Insurance Portability and Accountability Act of 1996 and the hospital’s policies.

For McNeill-Marks to succeed on her WPA claim, her call to her personal attorney would have had to qualify as a “report” to a “public body.” In an earlier published decision, the Michigan Court of Appeals held that McNeill-Marks’s personal attorney qualified as a “public body” simply because the personal attorney was a member of the State Bar of Michigan. The Supreme Court denied leave to appeal at that time.

Later, the Court of Appeals held, in an unpublished decision, that McNeill-Marks failed to make a cognizable “report” for purposes of the WPA when she told her personal attorney about Fields’s alleged PPO violation “because 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.” McNeill-Marks sought leave to appeal that decision in the Michigan Supreme Court. The Supreme Court’s early December order denied leave to appeal, leaving undisturbed the Court of Appeals’ holding.

There were two dissenting opinions. Justice Cavanagh’s dissent, which Justice Bernstein joined, argued “there is a ‘report’ under the WPA if one communicates information about the violation or suspected violation to a public body, regardless of the reporter’s intent.” Accordingly, Justice Cavanagh would have reversed the Court of Appeals’ judgment.

Justice Welch’s dissent, which Justice Zahra joined, contended that the Supreme Court should have granted leave to appeal to address the question whether every licensed attorney in Michigan constitutes a “public body” for purposes of the WPA. Justice Welch argued that the Court of Appeals’ holding “raises a host of potentially destabilizing complications for WPA litigation and extensive ethical quandaries for attorneys in Michigan.”

The Michigan Supreme Court’s denial of review means that these questions lack a definitive answer absent legislative action to revise the WPA.

For questions about this case, please contact Matt Nelson, Charlie Quigg, a member of Warner’s Labor and Employment Practice Group or your Warner attorney.

*Warner represented an amicus curiae supporting the hospital in the Michigan Supreme Court.