Whistleblower

By Michelle D. Bayer, Esq.
Featured in the Michigan Medical Law Report,
8 M.L.R. 1 (Spring 2012)

The Michigan Court of Appeals recently affirmed the dismissal of a lawsuit filed by a former University of Michigan Health System employee under the Michigan Whistleblower Protection Act (“WPA”), ruling that the employee failed to prove a causal connection between his termination and whistleblower activity.

In Prieskorn v. University of Michigan Health System, plaintiff Prieskorn was a newly-hired, part-time phlebotomist who was terminated by the University of Michigan Health System (“Hospital”) during his probationary period. In the suit, Prieskorn claimed he was terminated in violation of the WPA for raising complaints about patient safety, time cards, and other performance issues to his supervisors. The Hospital argued that Prieskorn’s termination was actually due to two documented incidents: (1) “stealing”schedule hours from another worker; and (2) surreptitiously recording co-workers in conversations he was not a part of.

As discussed below, the Prieskorn case presents a good opportunity for health care providers to review the framework for WPA claims. Notably, the case highlights steps that employers can take to minimize risk from such claims, as well as how employees can preserve their rights for protection under the WPA.

Background on the WPA

The WPA applies to all employers with at least one employee, and prohibits discrimination or retaliation against an employee for reporting an actual or suspected violation of law to a public body (such as a law enforcement agency, state agency, or certain other defined entities).

1. He was engaged in protective activity (i.e., reporting a violation or suspected violation);
2. He was discharged or discriminated against; and
3. A causal connection exists between the protected activity and the discharge or adverse employment action.

In the Prieskorn case, while there was evidence that Prieskorn’s reporting of the purported safety violations preceded his firing, the Court ruled that this temporal relationship, without more, was not enough to establish that “the termination was motivated by retaliation for the reporting of purported safety violations.” Specifically, Prieskorn’s own testimony was detrimental to the causation element where he admitted that his supervisor was not interested in hearing any complaints by him, not just safety complaints:

• “[a]gain when I started to make the patient safety violations, [the supervisor] was already irritated enough to where he didn’t want me to complain at all.”

Accordingly, the Court ruled that Prieskorn was unable to establish the third element, a causal connection.

Had Prieskorn been able to prove all three of the above requirements, the Hospital would then have had to articulate a legitimate business reason for his termination (i.e., “stealing” schedule hours and surreptitiously recording co-workers). Then, Prieskorn would have had to prove that the legitimate business reason offered by the Hospital was not the true reason, but was a “pretext” for discrimination/retaliation.

Lessons to be Learned from Prieskorn

This case highlights practical lessons for both employers and employees.

Employers

As this case demonstrates, simply because an employee is reporting compliance or other violations, he is not immune from disciplinary action for conduct which is unrelated to the whistleblowing activity. Notably, courts have rejected efforts to use the WPA anti-retaliation provisions as sword to thwart already-initiated disciplinary actions.

Here are just a few steps employers can take to reduce their risk of WPA claims:

• > Clearly communicate work policies, procedures, and rules to employees;


• >Uniformly and consistently document infractions and discipline employees;


• > Establish an internal compliance/reporting policy which:
  • Includes a reporting hierarchy for employee complaints; and
  • Requires the complaints to be made in writing;
  
  
• > Keep investigations of such whistleblower complaints separate from any work rule violation investigations and discipline relating to the same employee;


• > Foster an environment where employees believe that their internal reports will be taken seriously and will be free from retaliation or retribution; and


• > Report back to the complaining employee. Employees need to feel that their complaints have been heard, are being taken seriously, and are going to be addressed; and


• > Once an employee made a report (internally or externally), limit other employees’ knowledge of the activity to a need-to-know basis.

For example, in Prieskorn, the Hospital appropriately documented and responded to the improper behavior. Therefore, in spite of the timing between the disciplinary action and Prieskorn’s reporting, the Hospital was able to clearly and persuasively prove (in part through the plaintiff’s own admissions) that it was not the actual reports that the irritated the supervisor, but, rather, the frequency of the complaints on a variety of topics regarding other employees. Further, Prieskorn was unable to discredit the employer’s claim that his behavior regarding scheduled hours and recording employees warranted the disciplinary action.

It is important that employers deal with employees who engage in misconduct quickly and uniformly. Had the Hospital not responded so promptly to Prieskorn’s misconduct, and instead been cowed into inactivity by his complaints until after completion of the probationary period, the Hospital’s legitimate business reason for the termination would have been weaker.

Employees

It is important to understand the required elements for “protected activity”:

• >The employee, or someone acting on the employee’s behalf, must have reported or be “about to report,” verbally or in writing, a violation or a suspected violation of a law;
• >The verbal or written report must be made to a public body; and
• >The employer must have notice of the report or threat to report.

Or,
The employee must be requested to or participate in an investigation, hearing, or inquiry held by that public body, or a court action; and the employer must know of this activity.

It is also helpful if the whistleblowing employee documents his reporting efforts and his notice to his employer of such actual reporting, or threats to report. Employees should also be aware that the WPA has a very short statute of limitations period (filing deadline) of 90 days after the occurrence of the alleged violation.

For specific questions on how to avoid claims under the WPA, or be protected under the statute, providers should contact an experienced employment attorney.