                          STATE OF MICHIGAN

                            COURT OF APPEALS



ALI A. EL-KHALIL,                                                    UNPUBLISHED
                                                                     April 17, 2018
               Plaintiff-Appellant,

v                                                                    No. 329986
                                                                     Wayne Circuit Court
OAKWOOD HEALTH CARE INC., OAKWOOD                                    LC No. 15-008259-CK
HOSPITAL SOUTHSHORE, OAKWOOD
HOSPITAL DEARBORN, DR. RODERICK
BOYES, M.D., and DR. IQBAL NASIR, M.D.,

               Defendant-Appellees.


                                          ON REMAND

Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.


PER CURIAM.

        In this breach of contract and civil rights action, we previously affirmed the trial court’s
order granting summary disposition in defendants’ favor and dismissing plaintiff’s complaint.
El–Khalil v Oakwood Health Care Systems, Inc., unpublished per curiam opinion of the Court of
Appeals, issued April 4, 2017 (Docket No. 329986). In doing so, we reviewed the motion under
the standard set forth in MCL 2.116(C)(10). Id. slip op page 2. The Michigan Supreme Court
has now, in lieu of granting leave to appeal, vacated our prior opinion and remanded this case for
reconsideration under MCR 2.116(C)(7) and (8). El-Khalil v Oakwood Health Care, Inc, 501
Mich 940; 904 NW2d 601 (2017). We again affirm the trial court’s order.

       In our prior opinion, we summarized the relevant facts as follows:

              Plaintiff, a podiatrist, began employment with defendant Oakwood
       Hospital Dearborn as a staff physician on May 27, 2008. He ended his staff
       employment in June 2011, at which time he entered into contracts, in the form of
       bylaws of medical staff, with the defendant medical facilities as an independent
       physician, obtaining staff privileges at Oakwood Annapolis Hospital, Oakwood
       Heritage Hospital, Oakwood Hospital and Medical Center, and Southshore
       Medical Hospital. Every year plaintiff, like all other independent physicians, was
       required to request reappointment and be re-credentialed for the following year.


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      Plaintiff worked without incident, obtaining reappointments and being re-
      credentialed over the next few years, building his practice.

              In 2014, plaintiff allegedly obtained information about certain physicians
      at Oakwood Hospital and Medical Center engaging in illegal activities (healthcare
      fraud and professional negligence). According to plaintiff, when he confronted
      them and reported the actions to proper authorities, defendants retaliated against
      him by initiating an administrative agency proceeding against him which resulted
      in plaintiff having to take anger management classes. In August 2014, plaintiff
      initiated legal action against the defendants for violation of the civil rights act
      (race discrimination) and for tortious interference with an advantageous business
      relationship, based upon the allegations that defendants had made against him and
      which had resulted in the administrative agency proceeding. These claims were
      dismissed on defendants' summary disposition motion, the trial court having
      found that defendants were statutorily immune from liability and that plaintiff
      failed to state a discrimination claim under the civil rights act. Plaintiff filed a
      delayed application for leave to appeal that decision with this Court, which we
      denied.1

              Plaintiff filed the instant action in June 2015, asserting that since the time
      he initially sued defendants, they have continued to engage in actions attempting
      to prevent plaintiff from practicing at Oakwood Dearborn and Oakwood
      Southshore. According to plaintiff, he in fact received correspondence from the
      Chiefs of Staff of those facilities, defendants Boyes and Nasir, indicating that his
      staff privileges at those locations would expire in June 2015 even though his
      privileges were not set to expire until November 2015. The correspondence
      further indicated that the medical executive committees of the facilities had
      recommended that plaintiff not be reappointed to the medical staffs. Plaintiff thus
      asserted claims of breach of contract and retaliation in violation of the civil rights
      act.

              Defendants moved for summary disposition pursuant to MCR 2.116(C)(7)
      and (8). They argued that plaintiff's staff privileges were set to expire in June
      2015 and that the executive committee decided not to renew his privileges such
      that there was no breach of contract. Defendants additionally argued that there
      was no breach of contract because the bylaws signed by plaintiff and defendants
      did not constitute a contract, that the breach of contract claim was barred by
      release and that defendants were entitled to qualified immunity. As to the civil
      rights claim, defendants asserted that plaintiff failed to set forth a prima facie case
      of retaliation and, because there is a statutory ban on disclosure of peer review
      information, plaintiff could not obtain discovery to support his claim. The trial



1
 El–Khalil v Oakwood Health Care Systems, Inc., unpublished Order of the Court of Appeals,
entered January 8, 2016 (Docket No. 328569).


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       court granted defendants' motion. The trial court found that the bylaws were an
       enforceable contract but that the documents submitted by the parties indicate that
       plaintiff's most recent appointment term was set to expire on June 25, 2015, not in
       November 2015 as plaintiff claims. Thus, defendants did not terminate plaintiff's
       appointment term. The trial court further found that defendants' failure to renew
       plaintiff's appointment was not a breach of contract, as the allegations relied upon
       by defendants in making their decision relate directly to plaintiff's ability to
       provide efficient and quality care and plaintiff provided no evidence that the peer
       review was a sham. The trial court further found that plaintiff released defendants
       from liability under the bylaws because plaintiff offered no support for his
       allegations of malice and bad faith. The trial court found that defendants followed
       the guidelines set forth in the bylaws and were entitled to qualified immunity
       under the Health Care Quality Improvement Act and the Michigan Peer Review
       Immunity Statute. Finally, the trial court found that plaintiff failed to state a
       claim for retaliation in that, essentially, plaintiff failed to establish any causal
       connection between his protected activity and an adverse employment action.

       Plaintiff asserts that he stated a claim for unlawful retaliation under the Elliott Larsen
Civil Rights Act. We disagree.

        We review de novo a trial court's ruling on a motion for summary disposition. Anzaldua
v Neogen Corp, 292 Mich App 626, 629; 808 NW2d 804 (2011). Summary disposition is
appropriate under MCR 2.116(C)(7) because of release, immunity granted by law, or statute of
limitations, among other things. “When reviewing a motion for summary disposition under
MCR 2.116(C)(7), an appellate court accepts all the plaintiff's well-pleaded allegations as true,
and construes them most favorably to the plaintiff, unless specifically contradicted by
documentary evidence.” Xu v Gay, 257 Mich App 263, 266; 668 NW2d 166 (2003). A court
must also consider any documentary evidence to determine whether there is a genuine issue of
material fact regarding whether a valid exception under MCR 2.116(C)(7) exists. Dextrom v
Wexford Co, 287 Mich App 406, 431; 789 NW2d 211 (2010). “If no facts are in dispute, and if
reasonable minds could not differ regarding the legal effect of the facts, the question whether the
claim is barred is an issue of law for the court.” Id. We review de novo questions of law.
Kessler v Kessler, 295 Mich App 54, 57; 811 NW2d 39 (2011).

        A motion brought under MCR 2.116(C)(8) tests the legal sufficiency of the complaint
solely on the basis of the pleadings. Dalley v Dykema Gossett, 287 Mich App 296, 304–05; 788
NW2d 679 (2010). When deciding a motion under (C)(8), this Court accepts all well-pleaded
factual allegations as true and construes them in the light most favorable to the nonmoving party
and summary disposition should be granted only when the claim “is so clearly unenforceable as a
matter of law that no factual development could possibly justify a right of recovery.” Id.,
quoting Kuhn v Secretary of State, 228 Mich App 319, 324; 579 NW2d 101 (1998).




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         Under the Elliott Larsen Civil Rights Act (ELCRA):

         Two or more persons shall not conspire to, or a person shall not:

         (a) Retaliate or discriminate against a person because the person has opposed a
         violation of this act, or because the person has made a charge, filed a complaint,
         testified, assisted, or participated in an investigation, proceeding, or hearing under
         this act. [MCL 37.2701]


“To establish a prima facie case of unlawful retaliation under the Civil Rights Act, 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.” Rymal v
Baergen, 262 Mich App 274, 300; 686 NW2d 241 (2004).

        In this matter, plaintiff relies on indirect (or circumstantial) evidence to establish his case
of retaliation. When a plaintiff presents circumstantial rather than direct evidence of an
employer's retaliatory motive, we examine the claim under the McDonnell Douglas2 burden-
shifting analysis. Cuddington v United Health Services, Inc, 298 Mich App 264, 276; 826
NW2d 519 (2012). This framework allows a plaintiff “to present a rebuttable prima facie case
on the basis of proofs from which a factfinder could infer that the plaintiff was the victim of
unlawful discrimination.” Hazle v Ford Motor Company, 464 Mich 456, 462,; 628 NW2d 515
(2001), quoting DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 537–538;
620 NW2d 836 (2001). As explained in Hazle:

         [O]nce a plaintiff establishes a prima facie case of discrimination, the defendant
         has the opportunity to articulate a legitimate, nondiscriminatory reason for its
         employment decision in an effort to rebut the presumption created by the
         plaintiff's prima facie case. The articulation requirement means that the defendant
         has the burden of producing evidence that its employment actions were taken for
         a legitimate, nondiscriminatory reason. “Thus, the defendant cannot meet its
         burden merely through an answer to the complaint or by argument of counsel.” If
         the employer makes such an articulation, the presumption created by the
         McDonnell Douglas prima facie case drops away.

         At that point, in order to survive a motion for summary disposition, 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
         discrimination was a motivating factor for the adverse action taken by the


2
    McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973).




                                                  -4-
       employer toward the plaintiff.” [A] plaintiff “must not merely raise a triable issue
       that the employer's proffered reason was pretextual, but that it was a pretext for
       [unlawful] discrimination.” [Id. at 464–466, internal citations omitted]

Plaintiff engaged in a protected activity by filing a discrimination case against defendants in
2014. Although defendants argue otherwise, MCL 32.2701 does not require that the 2014
lawsuit be successful, or even meritorious. MCL 32.2701 simply prohibits retaliation if a person
has, among other things, “filed a complaint” under the civil rights act. Plaintiff's mere act of
filing the 2014 complaint against defendants alleging violations of the civil rights act was thus a
protected activity. Defendants clearly knew of this activity because they defended against the
2014 lawsuit. The first two elements of a prima facie case of unlawful retaliation have thus been
established. Plaintiff must next establish, in his prima facie case, that defendants took an adverse
employment action against him. Rymal, 262 Mich App at 300.

        “Although there is no exhaustive list of adverse employment actions, typically it takes the
form of an ultimate employment decision, such as a termination in employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices that might be unique to a
particular situation.” Pena v Ingham Co Rd Com'n, 255 Mich App 299, 312; 660 NW2d 351
(2003)(citations omitted). Plaintiff was denied the renewal of hospital privileges he had for
many years, albeit subject to a yearly renewal and re-credential process. We are satisfied that
this was an adverse employment action.3

        Finally, plaintiff must establish that this adverse employment action was causally related
to his filing of the 2014 lawsuit. Rymal, 262 Mich App at 300. To show causation in a
retaliatory discrimination case, “[p]laintiff must show something more than merely a coincidence
in time between protected activity and adverse employment action.” Garg v Macomb Co Cmty
Mental Health Services, 472 Mich 263, 286; 696 NW2d 646 (2005), opinion amended on denial
of reh. (July 18, 2005).

       Plaintiff alleged that the failure to renew his hospital privileges came only after and
because of his 2014 lawsuit. In his complaint, in fact, plaintiff alleged that no adverse actions
had been taken against him until after the 2014 lawsuit. Attached to and thus part of his
complaint, however, were emails from three doctors who practiced with plaintiff (ranging in date
from February 2015 through March 2015) asserting that plaintiff had threatened them and that
they do not feel safe in the hospital around him. Plaintiff also attached his response to the


3
 Although plaintiff initially claimed that defendants “suspended” his hospital privileges and that
his privileges were not set to expire until November 2015, plaintiff does not dispute the
expiration date of June 2015 on appeal.




                                                -5-
emails, where he stated that the allegations were false. Plaintiff also, in his response, attempted
to discredit the statements, but provided no evidence to show that retaliation was a motivating
factor in not renewing his hospital privileges. Plaintiff, then, provided nothing but temporal
proximity between the adverse employment action and his protected activity, which is
insufficient to show causal connection. Garg, 472 Mich at 286. Having failed to present a prima
facie case of retaliation, summary disposition of plaintiff's retaliation claim was appropriate
under MCR 2.116(C)(8).

        Plaintiff's breach of contract claim was premised upon his staff privileges expiring
sometime after June 2015, and plaintiff no longer claims that he was entitled to staff privileges
after that time. We thus need not consider plaintiff's breach of contract claim premised upon the
time that staff privileges were not renewed. Plaintiff appears to also assert that defendants
breached the bylaws by denying him a renewal of staff privileges for reasons other than those
related to the efficient delivery of quality patient care and to professional ability and judgment.
This claim was not raised in plaintiff’s amended complaint. Because, however, the trial court
addressed this claim, we will address it briefly.

        Plaintiff points only to his exemplary record as a doctor as the sole source of support for
his claim. Again, however, attached to plaintiff’s complaint are complaints against plaintiff by
other doctors of harassing and threatening behavior and the Medical Executive Committees of
Oakwood Hospital-Dearborn and Oakwood Hospital-Southshore’s letter to plaintiff advising that
the recommendation that he not be reappointed was based on his threatening behavior and verbal
abuse of staff from February through May 2015.

        The bylaws, attached to plaintiff’s complaint, set forth, in part, the following as basic
qualifications for membership:

              A. Basic Qualifications. Only Practitioners who can demonstrate their
       character, health, experience, training, demonstrated current professional
       competence, judgment, adherence to the ethics of their profession, and ability to
       work cooperatively with others, such that the Medical Staff and the Board are
       assured that they will furnish quality care in a manner that promotes a safe,
       cooperative and professional health care environment, shall be eligible for
       Medical Staff membership. (emphasis added)

While C. in the bylaws further provides that membership will not be denied “on the basis of any
criteria unrelated to the efficient delivery of quality patient care in the hospital, to professional
ability and judgment, or to the community need,” treatment of staff may well affect the quality of
care. The case of Wieters v Roper Hosp, Inc, 58 Fed Appx 40 (CA 4 2003) demonstrates this
principle. In that case, the plaintiff was a surgeon who had his staff privileges at a hospital
suspended for his “disruptive behavior.” The surgeon frequently expressed his dissatisfaction
with the care that the hospital provided its patients in an angry and disruptive manner. Id. at 41.
The surgeon sued the hospital, but the trial court granted summary disposition to the hospital.
On appeal, the surgeon argued that “the action was taken not in the reasonable belief that it
would further quality care, but to halt his complaints about the declining standards of care at the
hospital.” Id. at 45. In an affidavit, the president of the hospital’s medical staff detailed that the
surgeon had engaged “in seventeen instances of disruptive conduct, but gives no specifics.” The

                                                 -6-
affidavit described the surgeon as erupting in rage and engaging in unprofessional behavior. The
Fourth Circuit stated, “[i]t is not difficult to see that the hospital would be justified in the belief
that this conduct was detrimental to the quality of the health care it provided.” While this case is
not binding on this Court, we find it persuasive in how a doctor interacts with staff may serve as
the basis for a reasonable belief that the quality of health care is being affected, regardless of his
or her record as a doctor in general. Dismissal of plaintiff’s breach of contract claim under MCR
2.116(C)(8) was thus appropriate.

       Because we have determined that dismissal of both plaintiff's retaliation and breach of
contract claims was appropriate, we need not consider plaintiff's remaining claims on appeal.

       Affirmed.



                                                               /s/ Cynthia Diane Stephens
                                                               /s/ Deborah A. Servitto
                                                               /s/ Douglas B. Shapiro




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