                          STATE OF MICHIGAN

                            COURT OF APPEALS



CHRISTINA A. SEVILLA,                                                UNPUBLISHED
                                                                     June 28, 2016
               Plaintiff-Appellant,

v                                                                    No. 326521
                                                                     Bay Circuit Court
HEARTLAND HEALTH CARE CENTER-                                        LC No. 12-003848-CZ
HAMPTON d/b/a HEARTLAND-HAMPTON OF
BAY CITY, HCR MANORCARE SERVICES
LLC, HEARTLAND EMPLOYMENT
SERVICES, LLC, and JANIS NOWAK,

               Defendants-Appellees.


Before: FORT HOOD, P.J., and RONAYNE KRAUSE and GADOLA, JJ.

PER CURIAM.

       Plaintiff appeals as of right from the order of the circuit court granting defendants’
motion for summary disposition pursuant to MCR 2.116(C)(10).1 We affirm.

                                              I. FACTS

         Plaintiff worked at the Bay City nursing home facility of defendant Heartland Health
Care Center-Hampton, doing business as Heartland Hampton of Bay City, HCR Manorcare
Services, LLC, and Heartland Employment Services, LLC (hereafter, referred to collectively as
“Heartland”). Defendant Janis Nowak was the nursing home administrator or director of the
facility. Plaintiff was hired in 1998 as a dietary aide and was later promoted to cook, the position
she held until her termination on January 27, 2012. As a cook, plaintiff’s duties included
preparing “dietary supplements” for residents of the facility. Dietary supplements included items
like cheese and crackers, sandwiches, and protein drinks, and were given to patients who needed
extra calories or special nutrients based on the recommendation of a dietician to a patient’s
physician, who would then prescribe the supplement for the patient. When they prepared a


1
  Since the trial court relied on matters extraneous to the pleadings and expressly based its
determination on a finding that there was no genuine issue of material fact, we reject plaintiff’s
assertion that summary disposition was premised on MCR 2.116(C)(8) (failure to state a claim).


                                                -1-
supplement, the kitchen staff was to affix an adhesive label, which described the dietary
supplement and listed the name and room number of the patient receiving the supplement.

        According to plaintiff, when a supplement was not prepared for some reason (for
instance, when a patient was absent from the facility for an evening), the unused label was
thrown into the trash. Plaintiff claimed that beginning in August or September 2011, she began
to find entire sheets of dietary supplement labels on the counter in the facility, thrown into the
trash can, or in the dumpster outside the facility. Plaintiff suspected that a coworker, another
cook at the facility, was not preparing supplements for patients because she found the labels after
that cook’s shift. Plaintiff claimed that she reminded the coworker on two or three occasions to
prepare the supplements, and then began to collect labels when she continued to find them
discarded or left on the counter, storing them in her vehicle. In September 2011, plaintiff
informed her supervisor that she believed her coworker was not preparing supplements, and in
December 2011 she told a nurse of her suspicions; however, no action was apparently taken as a
result of her reports. Plaintiff claimed that when she learned that personnel from Heartland’s
corporate office were scheduled to visit the facility on January 24, 2012, she decided to turn the
labels over to them. She further claimed that also in January 2012, she received a letter
accompanying her paycheck from the chief executive officer of Heartland relating the company’s
anti-retaliation policy for reporting wrongdoing by a coworker and decided to tell Nowak about
the labels.

       Before reporting to Nowak, however, plaintiff showed the labels to the facility’s
administrative director of nursing services (hereafter, referred to as the “nursing director”) on or
about January 18, 2012. The nursing director asked plaintiff to give the labels to her. Plaintiff
refused, explaining that she planned to give them to Heartland corporate personnel. On or about
January 19, plaintiff’s supervisor asked her to turn over the labels, and told plaintiff that by
keeping the labels in her care she was in violation of HIPAA (the Health Insurance Portability
and Accountability Act, 42 USC 1320d et seq.). Plaintiff still refused to turn over the labels, and
was later confronted by Nowak. Nowak informed plaintiff that she was violating HIPAA and
had committed a potentially terminable offense by refusing a supervisor’s direct order to turn
over the labels. Plaintiff then turned over the labels to Nowak, who immediately suspended her,
and plaintiff was later fired by her supervisor at Nowak’s direction.

                                 II. PROCEDURAL POSTURE

        Plaintiff filed a complaint alleging that her termination violated public policy pursuant to
the Public Health Code (“PHC”), MCL 333.1101 et seq., and specifically, MCL 333.21771.
Plaintiff further alleged that Nowak had intentionally interfered with plaintiff’s advantageous
business relationship with Heartland, and that Nowak’s reliance on HIPAA to justify plaintiff’s
termination was a pretext “to cover up her own negligence” and that of other staff members.
Defendants filed for summary disposition pursuant to MCR 2.116(C)(10), asserting that there
was no genuine issue of material fact as to whether plaintiff was protected by MCL 333.21771,
and that plaintiff had not produced any evidence to show that Nowak had tortiously interfered
with her employment.

        The circuit court granted defendants’ motion, noting that apart from “limited exceptions,
[plaintiff] was terminable at-will” and that her public policy argument failed because she could

                                                -2-
not show that she took action under the statute that she relied upon in her complaint, MCL
333.21771. The court found that because plaintiff had failed to immediately report her
suspicions of wrongdoing to the nursing home administrator or nursing director, as specifically
articulated by the statute, and had instead waited approximately five months to report to them,
plaintiff could not claim public policy protection.

        Plaintiff filed a motion for reconsideration, arguing that under Suchodolski v Michigan
Consol Gas Co, 412 Mich 692, 695-696; 316 NW2d 710 (1982), and Landin v Healthsource
Saginaw, Inc, 305 Mich App 519; 854 NW2d 152 (2014), which was decided after the court
granted summary disposition, she had a valid public policy claim. Plaintiff also argued that
defendants had relied upon a recent amendment to MCL 333.21771, rather than the version of
that statute that was in effect during the events at issue, and that the court had erred by relying on
the amended version. The court granted plaintiff’s motion and reversed its earlier decision based
on its conclusion that defendants had based their motion for summary disposition on an incorrect
version of the applicable statute and had presented “new arguments” at the hearing.

        Defendants filed a second motion for summary disposition, which the court granted. The
court concluded that although plaintiff had relied on MCL 333.21771, under the plain language
of the statute in effect, she was required to “ ‘immediately report’ any act of abuse, mistreatment,
or neglect prohibited by this Section to the nursing home administrator or nursing director.
There is no genuine issue of material fact that she did not do so.” This appeal followed.

                      III. STATUTORY BASIS OF PLAINTIFF’S CLAIM

        Plaintiff argues first that the court erred by analyzing her claim as though it were a
“whistleblower” action pursuant to MCL 333.21771. This assertion is not accurate. As an initial
matter, the Whistleblower Protection Act (“WPA”), MCL 15.361 et seq., is incorporated in
section 201802 of the PHC, but is not incorporated in section 21771, the provision on which
plaintiff relied in her complaint. No whistleblower action arises under MCL 333.21771. The
circuit court’s opinion and order does not make any reference to the WPA, but rather discusses
plaintiff’s compliance (or lack thereof) with MCL 333.21771, the statute she cited repeatedly in
her complaint. Plaintiff did not cite MCL 333.20180 in her complaint, nor did she argue before
the circuit court that her claim arose under this provision of the statute. Moreover, the facts do
not indicate that this section is applicable to this case because plaintiff did not allege that she


2
    MCL 333.20180(1) provides in relevant part as follows:
                A person employed by or under contract to a health facility or agency or
         any other person acting in good faith who makes a report or complaint including,
         but not limited to, a report or complaint of a violation of this article or a rule
         promulgated under this article; who assists in originating, investigating, or
         preparing a report or complaint; or who assists the department in carrying out its
         duties under this article is immune from civil or criminal liability that might
         otherwise be incurred and is protected under the whistleblowers’ protection act,
         1980 PA 469, MCL 15.361 to 15.369.



                                                 -3-
made a report to a public body or that she was subject to civil or criminal liability for doing so.3
Thus, based on the record, plaintiff’s claim that the circuit court erred by dismissing her case
based on the WPA is entirely without merit. Rather, the court properly dismissed plaintiff’s
claim for failure to demonstrate that a genuine issue of material fact existed as to whether she
complied with the requirements of MCL 333.21771 in effect at the time of her actions.

       MCL 333.21771(1) provides that “[a] licensee, nursing home administrator, or employee
of a nursing home shall not physically, mentally, or emotionally abuse, mistreat, or harmfully
neglect a patient.” In January 20124, MCL 333.21771 further provided, in relevant part, as
follows:

                (2) A nursing home employee who becomes aware of an act prohibited by
        this section immediately shall report the matter to the nursing home administrator
        or nursing director. A nursing home administrator or nursing director who
        becomes aware of an act prohibited by this section immediately shall report the
        matter by telephone to the department of public health, which in turn shall notify
        the department of social services.

               (6) A nursing home employee, licensee, or nursing home administrator
        shall not evict, harass, dismiss, or retaliate against a patient, a patient’s
        representative, or an employee who makes a report under this section. [See 2012
        PA 174 (emphasis added).]

The circuit court concluded that in order to invoke the protection of the anti-retaliation provision
of subsection (6), plaintiff had to show that she complied with subsection (2) by immediately
reporting any act of abuse, mistreatment, or neglect to the nursing home administrator or nursing
director. The court noted that although plaintiff began to suspect that her coworker was failing
to provide dietary supplements to patients in August 2011, she did not tell Nowak or the nursing
director about her suspicion until January 18 or 19, 2012, a delay of approximately five months.
When viewed in the light most favorable to plaintiff, the court’s finding that plaintiff “failed to
report immediately to the persons designated in the statute” was not error. See Maiden v
Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999).

                                      IV. PUBLIC POLICY

       Plaintiff argues next that the circuit court’s decision was contrary to public policy
because she should not have been deprived of the protection of the anti-retaliation provisions of
the PHC, MCL 333.20176a(1)(a) and MCL 333.21771(6), based on her failure to comply with
the specific reporting requirements of the latter provision. According to plaintiff, because she



3
    See MCL 15.362.
4
   MCL 333.21771 was amended effective June 19, 2012. Unless otherwise indicated, the
version of the statute in effect prior to the amendment (at the time of the offense, in January
2012) is referred to in this report.


                                                -4-
did not have a valid whistleblower claim or other claim under the PHC, she was entitled to bring
a public policy claim. This is a misstatement of the applicable law. We agree with the circuit
court that a public policy claim must “be rooted in a statute. It’s not just something the courts
make up.” The court did not err in finding that plaintiff could not claim public policy protection
based on the PHC because she did not follow its requirements.

        In Suchodolski, our Supreme Court held that there were three exceptions to the general
rule that “either party to an employment contract for an indefinite term may terminate it at any
time for any, or no, reason . . . based on the principle that some grounds for discharging an
employee are so contrary to public policy as to be actionable.” Suchodolski, 412 Mich at 695.
We have recognized these exceptions as follows:

       (1) explicit legislative statements prohibiting the discharge, discipline, or other
       adverse treatment of employees who act in accordance with a statutory right or
       duty (e.g., the Civil Rights Act, MCL 37.2701; the Whistleblowers’ Protection
       Act, MCL 15.362; the Persons With Disabilities Civil Rights Act, MCL 37.1602),
       (2) where the alleged reason for the discharge was the failure or refusal of the
       employee to violate a law in the course of employment (e.g., refusal to falsify
       pollution reports; refusal to give false testimony before a legislative committee;
       refusal to participate in a price-fixing scheme), and (3) where the reason for the
       discharge was the employee’s exercise of a right conferred by a well-established
       legislative enactment (e.g., retaliation for filing workers’ compensation claims).
       [Landin, 305 Mich App 524, citing Suchodolski, 412 Mich at 695-696.]

Additionally, we noted that,

       [o]ur Supreme Court’s enumeration [in Suchodolski] of ‘public policies’ that
       might forbid termination of at-will employees was not phrased as if it was an
       exhaustive list. This does not mean, however, that trial courts have unfettered
       discretion or authority to determine what may constitute sound public policy
       exceptions to the at-will employment doctrine. [Id. at 525 (citation and internal
       quotation marks omitted).]

       Rather,

               [i]n identifying the boundaries of public policy, we believe that the focus
       of the judiciary must ultimately be upon the policies that, in fact, have been
       adopted by the public through our various legal processes, and are reflected in our
       state and federal constitutions, our statutes, and the common law. See Twin City
       Pipe Line Co v Harding Glass Co, 283 US 353, 357; 51 S Ct 476; 75 L Ed 1112
       (1931). The public policy of Michigan is not merely the equivalent of the
       personal preferences of a majority of this Court; rather, such a policy must
       ultimately be clearly rooted in the law. [Id., quoting Terrien v Zwit, 467 Mich 56,
       66-67; 648 NW2d 602 (2002).]

       Plaintiff contends that there are a “plethora” of provisions in the PHC that could provide
the “explicit legislative statements prohibiting discharge” required by the first and third

                                               -5-
exceptions stated in Suchodolski. However, plaintiff cites only two provisions of the statute in
her brief on appeal, MCL 333.21771 and MCL 333.20176a, and relied only on the former
provision in her complaint. As discussed, plaintiff did not meet the requirements of MCL
333.21771. Because plaintiff also did not present a valid claim under section 20176a, her
argument that Suchodolski supports her claim lacks merit.

        MCL 333.20176a protects from retaliation employees of health facilities or agencies who
report “the malpractice of a health professional.” MCL 333.20176a(1)(a). Although the statute
does not define “malpractice,” it is defined commonly as “[a]n instance of negligence or
incompetence on the part of a professional,” or as the failure of a doctor “to exercise the degree
of care and skill that a physician or surgeon of the same medical specialty would use under
similar circumstances.” Black’s Law Dictionary (7th ed). Although plaintiff argues on appeal
that this provision should apply where a patient “does not get their supplements,” we are not
persuaded by this argument. Plaintiff’s coworker was a cook, not a health professional.
Although we recognize that the supplements were prescribed by health professionals, assuming
that the patients did not receive their supplements, plaintiff has not alleged that the dieticians or
physicians who prescribed the supplements were aware of this potential neglect or were
somehow responsible for it. Thus, even if plaintiff had raised section 20176a in her complaint,
she has not demonstrated that her coworker’s actions constituted malpractice by a health
professional. Plaintiff’s argument that she had a valid public policy claim under Suchodolski
based on sections 20176a and 21771 of the PHC is not persuasive.

         Finally, plaintiff argues that she was not bound to comply with MCL 333.21771 in order
to present a valid public policy claim because she presented a prima facie case of unlawful
retaliation. This assertion is not accurate. In Landin, this Court stated,

               [t]o establish a prima facie case of unlawful retaliation a plaintiff must
       show (1) that he engaged in a protected activity, (2) that this was known by the
       defendant, (3) that the defendant took an employment action adverse to the
       plaintiff, and (4) that there was a causal connection between the protected activity
       and the adverse employment action. Landin, 305 Mich App at 533, citing
       DeFlaviis v Lord & Taylor, Inc., 223 Mich App 432, 436; 566 NW2d 661 (1997).

        In the instant case, plaintiff has not shown that she engaged in a protected activity. As
discussed, plaintiff failed to timely report the alleged misconduct of her coworker to the nursing
home administrator or nursing director, as required by the statute. Thus, she did not engage in a
protected activity under MCL 333.21771(2). Although plaintiff claims that she engaged in
protected activity “under prongs one and three of Suchodolski,” this argument is not persuasive,
because, as discussed, pursuant to Suchodolski, plaintiff was required to rely upon an explicit
legislative statement or well-established legislative enactment in order to claim an exception to
the general rule regarding termination of at-will employment relationship. Because plaintiff has
not shown that she engaged in protected activity pursuant to valid authority, she has not shown
that she presented a prima facie case of unlawful retaliation.

                                 V. AFFIRMATIVE DEFENSE



                                                -6-
        Plaintiff argues that defendants failed to raise an affirmative defense in their first
responsive pleading, and that the trial court erred by considering it. According to plaintiff,
defendants’ argument that plaintiff failed to “immediately report” the alleged neglect of her
coworker “was in the form of an affirmative defense that must have been pled and proven.” This
assertion is incorrect. As discussed, under the statute relied upon by plaintiff in her complaint,
she was required to immediately report her coworker’s alleged misconduct to Nowak or the
nursing director in order to claim its protection. MCL 333.21771(2). Thus, defendant’s
argument was not an affirmative defense, but, rather, merely pointed out plaintiff’s statutory
obligation. See MCR 2.111(F)(3)(b), (c). Plaintiff is not entitled to relief on this basis.

       Affirmed.

                                                            /s/ Karen M. Fort Hood
                                                            /s/ Amy Ronayne Krause
                                                            /s/ Michael F. Gadola




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