            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



BRANDILYN WILKINSON,                                                 UNPUBLISHED
                                                                     January 17, 2019
              Plaintiff-Appellant,

v                                                                    No. 342287
                                                                     Kalamazoo Circuit Court
LIFE EMS AMBULANCE,                                                  LC No. 2016-000565-CD

              Defendant-Appellee.


Before: MARKEY, P.J., and M. J. KELLY and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff, Brandilyn Wilkinson, appeals as of right the trial court’s order granting
summary disposition in favor of plaintiff’s former employer, defendant Life EMS Ambulance,
pursuant to MCR 2.116(C)(10). We affirm.

        Plaintiff began her employment as a paramedic with defendant in April 2015. Defendant
presented evidence that plaintiff had been fired on four previous occasions by other employers.
A director of operations for defendant averred that “[n]obody at Life EMS was aware of the full
extent of her employment history when we hired [her, and we] did not have a complete picture of
why she was fired from previous employers.” He further averred that plaintiff’s “employment
application . . . omitted some of the EMS providers where she was terminated from or left on
poor terms.” Defendant presented additional evidence showing that, during plaintiff’s
employment, there were several documented incidents in which she became embroiled in
conflicts with her coworkers and engaged in the questionable administration of medications. The
director of operations indicated as follows:

               [Plaintiff] has a very difficult personality where she will not admit fault or
       take direction about areas where she needs to improve. She also had a perception
       of herself as a paramedic that far exceeded reality, and she tended to have an
       over-aggressive, cavalier approach to medicating patients (particularly as it relates
       to sedatives or pain medications).
       In February 2016, defendant implemented a new policy concerning the proper
administration of medications which was called the medication administration cross-check
(MACC) policy, entailing four specific steps employed by at least two paramedics.

        On February 25, 2016, plaintiff suffered a sprained knee while treating a patient in the
back of an ambulance when it was moving and then suddenly stopped. Subsequently, plaintiff
applied for and received workers’ compensation benefits. In May 2016, plaintiff’s physician
indicated that she could participate in restricted duty at work which limited her to a position
where she could primarily sit. Defendant found plaintiff a temporary administrative position in
Grand Rapids; however, plaintiff obtained a note from her physician that precluded her from
driving to Grand Rapids. In June 2016, defendant offered plaintiff a restricted-duty position in
Kalamazoo, which she accepted, but plaintiff only worked in the position for a couple of days
before once again obtaining a doctor’s note taking her off the job. Plaintiff, who had been
pregnant at the time she sustained the knee injury, gave birth to her daughter in July 2016.

        On August 11, 2016, plaintiff presented defendant with a notice of claim for first-party
no-fault insurance benefits related to the knee injury suffered in the ambulance. In September
2016, plaintiff’s treating physician suggested surgery for the knee, while also providing
permission for plaintiff to return to work with various physical restrictions during the interim.
Also in September 2016, at the behest of defendant’s insurer, an independent medical
examination (IME) was completed; the IME physician did not believe that knee surgery was
necessary. The IME doctor concluded that there were “no abnormal physical findings except
subjective exaggerated pain.” The IME physician opined that plaintiff could “return to full
unrestricted duty.” On the basis of the IME, plaintiff’s workers’ compensation benefits were
discontinued. On October 6, 2016, plaintiff applied for a personal leave of absence from
defendant so that she could have knee surgery.

        On October 11, 2016, plaintiff filed a petition for mediation or hearing with the workers’
compensation bureau, challenging the decision to discontinue her benefits. Defendant’s having
approved plaintiff’s request for a leave of absence, plaintiff underwent surgery on her knee on
October 13, 2016. On October 31, 2016, the workers’ compensation bureau sent a notice to
defendant, informing it that plaintiff had filed a petition for mediation or hearing regarding the
discontinuation of her workers’ compensation benefits. A hearing on the matter was scheduled
for December 6, 2016. On November 9, 2016, plaintiff returned to work. On the following day
she was paid the no-fault insurance benefits that she had requested. Upon plaintiff’s return to her
job, defendant required her to work with a field training instructor, Jared Spallina, to reorient her
to the job and familiarize her with respect to current policies, such as the MACC. On November
18, 2016, defendant apparently recommended that plaintiff return to full Level 2 paramedic
status, even though defendant’s paramedic supervisor had concerns about plaintiff.1

        During an ambulance run on November 21, 2016, an incident occurred during which
plaintiff administered a sedative to a heart attack patient with low blood pressure, allegedly


1
  Those concerns included plaintiff’s purported inadequate knowledge of physiology, over-
confidence in her skills, lack of protocol compliance, and her alleged abrasive personality.


                                                -2-
violating the MACC policy and endangering the patient’s life. We will discuss this incident in
more detail below. As a result and on the same day of the incident, defendant suspended
plaintiff without pay. On November 23, 2016, defendant sought review of the incident by the
Kalamazoo County Medical Control Authority (KCMCA).2 A week later, on November 30,
2016, plaintiff’s employment was terminated.

       With respect to the incident on November 21, 2016, which formed the basis for
termination, defendant issued the following notice to plaintiff:

               Brandilyn, patient safety is critical to the operation of Life EMS. Your
       verbal statement to Life EMS leadership on 11/23/2016 indicated that you directly
       informed Jared [Spallina] that you were administering Versed to the patient and
       that he was standing “right next to” you when you administered it. Your
       electronic patient care record indicates that a formal medication cross check
       procedure was done with Jared prior to the administration of the Versed.

               During the course of the investigation which included in-person
       interviews, formal written statements, audio recording review, quality
       improvement screening, and a medical control debriefing, it was concluded that
       contrary to your statement, you did not directly inform Jared that you were
       administering Versed to the patient and you falsely documented, within your
       electronic patient care record, that a formal medication cross-check took place
       with your Field Trainer, Jared. Further, you failed to verbally communicate that
       you had administered a sedative medication with the potential to cause profound
       complications including respiratory depression and hypotension to an acutely ill
       patient, which created a clear patient safety concern.

               The falsification of patient care information is a direct violation of Life
       EMS policies #301 and #310. In consideration of the severity of this incident,
       your failure to appropriately respond to leadership counseling, and your continued
       dishonesty when questioned about the medication cross check, Life EMS has
       determined to separate employment with you effective immediately.

         On December 19, 2016, plaintiff filed a two-count complaint against defendant, alleging
a violation of the Worker’s Disability Compensation Act (WDCA), MCL 418.101 et seq., based
on retaliatory discharge under MCL 418.301(13), along with a claim that defendant violated
public policy by discharging her for having requested no-fault insurance benefits. Defendant
filed a motion for summary disposition under MCR 2.116(C)(10), arguing that both of plaintiff’s
retaliation claims failed as a matter of law because she could not establish causation and because
she could not prove that the legitimate, nonretaliatory reasons for her discharge were pretextual.



2
  Ultimately, no sanctions were imposed by the KCMCA against plaintiff’s license. There was
legal wrangling below regarding whether KCMCA-related testimony was protected by
Michigan’s peer-review privilege. We shall further discuss this matter later in the opinion.


                                               -3-
Defendant further contended that the no-fault retaliation claim also failed because it is not a
recognizable claim under Michigan law.

         Ruling from the bench, the trial court stated that plaintiff’s arguments might very well
support a prima facie case of retaliation, giving rise to an inference of a causal connection
between protected activity and the discharge. The court determined, however, that if plaintiff
proved a prima facie case, defendant presented legitimate reasons for terminating plaintiff’s
employment, i.e., violation of the MACC policy and falsifying the patient care report. The trial
court rejected plaintiff’s argument that she was exonerated by the KCMCA in regard to her
conduct since the evidence only showed that plaintiff did not lose her paramedic’s license. The
court explained that the KCMCA was not concerned with whether plaintiff did her job according
to the rules and protocols established by defendant for its employees. The trial court concluded
that defendant offered legitimate, nonretaliatory reasons for the termination and that plaintiff
failed to submit evidence showing that the reasons were pretextual. The court ruled that plaintiff
failed to present sufficient evidence demonstrating that her participation in protected activity was
a motivating factor for her discharge. Accordingly, plaintiff’s WDCA claim failed. With respect
to the retaliation claim premised on plaintiff’s request for no-fault benefits, the trial court found
that it was not a cognizable claim under Michigan law. Moreover, according to the court, even if
such a claim existed, it failed for the same reasons that the WDCA claim failed. The trial court
subsequently entered an order granting defendant’s motion for summary disposition. And the
court denied plaintiff’s motion for reconsideration. Plaintiff appealed as of right.

       This Court reviews de novo a trial court’s ruling on a motion for summary disposition.
Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). In Pioneer State Mut Ins Co v
Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013), this Court set forth the principles
governing a motion for summary disposition brought pursuant to MCR 2.116(C)(10), observing:

               In general, MCR 2.116(C)(10) provides for summary disposition when
       there is no genuine issue regarding any material fact and the moving party is
       entitled to judgment or partial judgment as a matter of law. A motion brought
       under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court
       may grant a motion for summary disposition under MCR 2.116(C)(10) if the
       pleadings, affidavits, and other documentary evidence, when viewed in a light
       most favorable to the nonmovant, show that there is no genuine issue with respect
       to any material fact. A genuine issue of material fact exists when the record,
       giving the benefit of reasonable doubt to the opposing party, leaves open an issue
       upon which reasonable minds might differ. The trial court is not permitted to
       assess credibility, weigh the evidence, or resolve factual disputes, and if material
       evidence conflicts, it is not appropriate to grant a motion for summary disposition
       under MCR 2.116(C)(10). A court may only consider substantively admissible
       evidence actually proffered relative to a motion for summary disposition under
       MCR 2.116(C)(10). [Citations and quotation marks omitted.]

        “Like the trial court’s inquiry, when an appellate court reviews a motion for summary
disposition, it makes all legitimate inferences in favor of the nonmoving party.” Skinner v
Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994); see also Dextrom v Wexford Co, 287


                                                -4-
Mich App 406, 415; 789 NW2d 211 (2010) (a court must draw all reasonable inferences in favor
of the nonmoving party).

        Plaintiff argues that the trial court improperly made conclusions as to disputed facts and
failed to view the evidence in a light most favorable to plaintiff. Plaintiff further maintains that
she established a prima facie case of retaliatory discharge under the WDCA. Finally, plaintiff
contends that she stated a cognizable cause of action for retaliatory termination based on the
requested payment of no-fault insurance benefits.

       With respect to the WDCA, MCL 418.301(13), provides:

              A person shall not discharge an employee or in any manner discriminate
       against an employee because the employee filed a complaint or instituted or
       caused to be instituted a proceeding under this act or because of the exercise by
       the employee on behalf of himself or herself or others of a right afforded by this
       act.

       In Cuddington v United Health Servs, Inc, 298 Mich App 264, 275; 826 NW2d 519
(2012), this Court observed:

               To establish a prima facie case of retaliation under the WDCA, an
       employee who has suffered a work-related injury must present evidence: (1) that
       the employee asserted a right to obtain necessary medical services or actually
       exercised that right, (2) that the employer knew that the employee engaged in this
       protected conduct, (3) that the employer took an employment action adverse to
       the employee, and (4) that the adverse employment action and the employee's
       assertion or exercise of a right afforded under MCL 418.315(1) were causally
       connected.

        In the instant case, the first three elements are not in dispute, but the parties disagree in
regard to the existence of a causal connection between plaintiff’s exercise of a WDCA right and
her discharge from employment. It appears that the trial court, in analyzing the case for purposes
of summary disposition, proceeded on the assumption that plaintiff had established a prima facie
case, encompassing all four elements. With respect to causation, the panel in Cuddington, 298
Mich App at 275-276, explained:

               The last element, causation, is usually difficult to prove. Under some
       circumstances, a plaintiff may be able to produce direct evidence of retaliatory
       animus. In employment discrimination cases, our Supreme Court has defined
       “direct evidence” as evidence which, if believed, requires the conclusion that
       unlawful discrimination was at least a motivating factor in the employer's actions.
       In the retaliation context, direct evidence of retaliation establishes without resort
       to an inference that an employer's decision to take an adverse employment action
       was at least in part retaliatory.

               Rarely will an employer openly admit having fired a worker in retaliation
       for exercising a right of employment. . . . When a plaintiff presents circumstantial
       rather than direct evidence of an employer's retaliatory motive, we examine the
                                                -5-
       claim under the McDonnell Douglas/Burdine3 burden-shifting framework.
       [Citations and quotation marks omitted.]

        Here, there was no direct evidence of retaliation by defendant; therefore, plaintiff was
forced to proceed on the basis of circumstantial evidence and the employment of the burden-
shifting framework. In Cuddington, 298 Mich App at 276-277, this Court discussed the
framework:

               Under the McDonnell Douglas/Burdine analysis, when a plaintiff asserting
       a claim for retaliatory discharge under MCL 418.301(13) circumstantially
       establishes a rebuttable prima facie case of retaliation, the burden shifts to the
       defendant to articulate a legitimate, nonretaliatory reason for its adverse
       employment action. If the defendant produces a legitimate, nondiscriminatory
       reason for its action, the plaintiff must demonstrate that the evidence in the case,
       when construed in the plaintiff’s favor, is sufficient to permit a reasonable trier of
       fact to conclude that [retaliation] was a motivating factor for the adverse action
       taken by the employer toward the plaintiff. A plaintiff can establish that the
       employer’s proffered reasons for the adverse employment action qualify as
       pretextual by demonstrating that the reasons (1) had no basis in fact, (2) were not
       the actual factors motivating the decision, or (3) were insufficient to justify the
       decision. [Quotation marks and citations omitted; alteration in original.]

        The trial court found that defendant had articulated legitimate, nonretaliatory reasons for
the discharge and that, as a matter of law, plaintiff failed to demonstrate that retaliation was a
motivating factor for the termination or, stated otherwise, that the reasons defendant proffered
were pretextual.

        Plaintiff initially argues that the trial court improperly reached conclusions as to disputed
facts and failed to view the evidence in a light most favorable to plaintiff. More specifically,
plaintiff contends that the trial court failed to give any weight to the fact that the KCMCA took
no action against plaintiff’s license on review of the November 21, 2016 incident; there were no
adverse consequences from the KCMCA investigation. Plaintiff asserts that she was terminated
solely on the basis of falsification of records, which is a matter that would have resulted in
formal review by the KCMCA after the initial inquiry. But there was no formal review,
effectively indicating that the KCMCA found no falsification of documents by plaintiff.
Therefore, according to plaintiff, the trial court erred in ruling that plaintiff offered no evidence
to show that defendant’s reason for the discharge was a mere pretext for unlawful retaliation.

       In support of her position, plaintiff relies on the deposition testimony of Dr. William
Fales of the KCMCA. Specifically, plaintiff focuses on pages 47 and 48 of Dr. Fales’s




3
 McDonnell Douglas Corp v Green, 411 US 792, 93 S Ct 1817, 36 L Ed 2d 668 (1973); Texas
Dep’t of Community Affairs v Burdine, 450 US 248, 101 S Ct 1089, 67 L Ed 2d 207 (1981).


                                                -6-
deposition transcript, which pages were attached to plaintiff’s response to defendant’s motion for
summary disposition.4 Dr. Fales testified, in pertinent part, as follows:

              A. I would be concerned about any falsification of a record relating to the
       process, whether it’s a primary document from the patient encounter or it’s a
       statement generated by the individual parties describing their involvement in the
       incident.

              Q. And if the medical record were falsified, that would be grounds, in
       your opinion, in your practice to trigger a more formal review?

               A. That would be grounds for triggering a more formal review. That said,
       it has not, fortunately, been something we’ve had to do on any recurring basis. I
       can’t remember if or when I’ve had to deal with a falsified medical record from
       EMS.

From this testimony, plaintiff extrapolates that the KCMCA found that there was no falsification
of documents by plaintiff, otherwise a formal review would have been initiated.

        Before defendant moved for summary disposition, it had filed a motion for a protective
order to enforce Michigan’s peer-review privilege relative to KCMCA proceedings and Dr.
Fales. The trial court entered a partial protective order, ruling that there was “good cause for the
issuance of a protective order regarding the peer-review protected information considered by the
. . . KCMCA[], the proceedings, reports, findings, or conclusions of KCMCA, the records, data,
and knowledge collected for or by KCMCA, and the deposition testimony of Dr. William Fales
regarding the KCMCA’s review of patient care as it relates to this case.” The trial court further
ruled:

              Plaintiff may not introduce the testimony of Dr. William Fales (deposition
       or otherwise) or other evidence regarding any proceedings, reports, findings, or
       conclusions of KCMCA, and Plaintiff similarly may not introduce evidence
       regarding the records, data, and knowledge collected for or by KCMCA in
       connection with the review of patient care provided by Plaintiff as it relates to this
       case.

               [P]laintiff may introduce evidence that Defendant provided information to
       the KCMCA, and she may also introduce evidence regarding her current license
       status with the State of Michigan.

        In light of this order, it certainly does not appear that plaintiff was even permitted to rely
on any deposition testimony by Dr. Fales for purposes of summary disposition or otherwise.
This is consistent with the trial court’s rejection of plaintiff’s summary disposition argument that


4
  Plaintiff also cites other pages of the transcript of Dr. Fales’s deposition, but she failed to attach
them to her brief in response to defendant’s motion for summary disposition.


                                                  -7-
she was exonerated by the KCMCA, with the court noting that any discussion of KCMCA
proceedings was limited to showing that information was provided to the KCMCA and that
plaintiff’s license was thereafter unaffected. And plaintiff has not presented an appellate
challenge to the trial court’s partial protective order.

         Moreover, even if Dr. Fales’s deposition testimony is considered, it does not stand for the
proposition plaintiff forwards. Dr. Fales simply indicated that, generally speaking, falsification
of a medical record would trigger a more formal review. He did not testify that the KCMCA
specifically examined whether plaintiff had engaged in falsification of records or that the
KCMCA had determined that there was no falsification in plaintiff’s case. Dr. Fales did testify
that the KCMCA does not make employment decisions in cases that come before the KCMCA.
Further, defendant’s director of operations averred in his affidavit that the “KCMCA did not (and
could not) evaluate whether [plaintiff] complied with the MACC policy, whether she falsified
records, or whether she was receptive to counseling.” When plaintiff herself was asked whether
Dr. Fales told her that she did not falsify a patient care record, plaintiff responded, “No. There
was no discussion of that.” Even in regard to the alleged violation of the MACC policy
implemented by defendant, the fact that the KCMCA did not take any action against plaintiff’s
license could not establish a question of fact on the matter of the policy violation, as plaintiff
fails to argue or show that there is a necessary correlation between relevant licensing criteria and
the exercise of the MACC policy. Additionally, there is no evidence that the KCMCA
determined that plaintiff had not violated defendant’s MACC policy. 5

        In sum, we reject plaintiff’s argument that in relation to the KCMCA investigation, the
trial court improperly made conclusions as to disputed facts and failed to view the evidence in a
light most favorable to plaintiff.

        Plaintiff next contends that she established a prima facie case of retaliatory discharge
under the WDCA. Her argument, however, tends to wander, discussing prima facie case
principles interchangeably with pretext principles, which are two separate and distinct
components of the McDonnell Douglas/Burdine burden-shifting framework. Ultimately, the
asserted evidentiary bases for plaintiff’s position are that: (1) the reason for the discharge was
false given that the KCMCA effectively cleared plaintiff of falsifying records; (2) defendant did
not impose a less severe adverse employment consequence where termination was unjustifiably
harsh under the circumstances; (3) plaintiff did not have any negative marks on her employment
record before her work injury; (4) falsification could not be shown “merely because one co-
employee did not hear a call out during a diverting emergency medical situation”, and (5) the
termination occurred in close temporal proximity to protectived activity. For purposes of
identifying the “protected activity,” plaintiff focuses on her action in filing a petition for
mediation or hearing with the workers’ compensation bureau on October 11, 2016, for which




5
  As is evident by our discussion, we reject plaintiff’s argument that the only basis for the
termination was falsification of records. The notice of termination cited multiple grounds.


                                                -8-
notice was mailed to defendant on October 31, 2016—only about a month before the
termination. 6

        First, for the reasons discussed earlier, we reject that part of plaintiff’s argument that
relies on alleged implications arising from the KCMCA proceedings; those purported
implications were too tenuous, not adequately supported, and did not controvert the evidence that
plaintiff falsified records and violated the MACC policy. With respect to plaintiff’s argument
that defendant terminated her instead of imposing a less severe punishment commensurate to her
conduct, we note that the grounds defendant relied on for termination, mainly falsification of
records and violation of the MACC policy which was implemented to safeguard patients, easily
justified termination. And we thus fail to see how plaintiff’s argument has any relevant bearing
on causation or pretext.

        In regard to plaintiff’s contention that she did not have any negative marks on her
employment record before her work injury, we find this to be patently untrue. Before she hurt
her knee injury, there had been multiple documented incidents regarding conflicts between
plaintiff and her coworkers and her questionable administration of medications. Next, we
address plaintiff’s argument that falsification could not be shown “merely because one co-
employee did not hear a call out during a diverting emergency medical situation.” This woefully
undeveloped argument cannot overcome, as a matter of law, the overwhelming evidence that
plaintiff violated the MACC policy during the November 21, 2016 incident, provided false
information to her employer about the incident, and falsified records.

       We are left with plaintiff’s argument that the termination occurred in close temporal
proximity to protective activity thereby creating a factual question on causation and/or pretext.
In West v Gen Motors Corp, 469 Mich 177, 186; 665 NW2d 468 (2003), our Supreme Court
held:

               Although the employment actions about which plaintiff complains
       occurred after his report to the police, such a temporal relationship, standing
       alone, does not demonstrate a causal connection between the protected activity
       and any adverse employment action. Something more than a temporal connection
       between protected conduct and an adverse employment action is required to show
       causation where discrimination-based retaliation is claimed. . . . Plaintiff must
       show something more than merely a coincidence in time between protected
       activity and adverse employment action. [Citations omitted.]

        Given this pronouncement by our Supreme Court and considering that, ultimately,
temporal proximity is plaintiff’s lone viable argument, we conclude that the trial court did not err
in granting defendant’s motion for summary disposition.




6
 We also note that it does appear that defendant actually received the notice in early November
2016.


                                                -9-
       In sum, plaintiff’s cause of action for retaliatory discharge under the WDCA fails, where
she did not create a genuine issue of material fact with respect to the “causal connection”
element of a prima facie case and relative to showing that defendant’s legitimate, non-retaliatory
reasons for discharge were pretextual, assuming adequate evidence of causation.

        Finally, plaintiff maintains that the trial court erred in granting summary disposition of
her claim for retaliatory discharge based on the request for no-fault insurance benefits. Even
were there such a cause of action in Michigan, we conclude the claim fails because, as a matter
of law, plaintiff cannot establish the requisite causation for the reasons expressed above.7

       We affirm. Having fully prevailed on appeal, defendant is awarded taxable costs
pursuant to MCR 7.219.

                                                            /s/ Jane E. Markey
                                                            /s/ Michael J. Kelly
                                                            /s/ Brock A. Swartzle




7
  We would also note that the termination did not occur in close temporal proximity to plaintiff’s
request for no-fault benefits.


                                              -10-
