PINO COLONE MD V PATRICK WARDELL
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STATE OF MICHIGAN
COURT OF APPEALS
PINO COLONE, M.D.,
UNPUBLISHED
October 7, 2010
Plaintiff-Appellee,
v
PATRICK R. WARDELL, HURLEY MEDICAL
CENTER BOARD OF HOSPITAL MANAGERS,
UNIVERSITY OF MICHIGAN, and
UNIVERSITY HOSPITAL,
No. 287601
Genesee Circuit Court
LC No. 07-086428-CZ
Defendants,
and
REGENTS OF UNIVERSITY OF MICHIGAN,
Defendant-Appellant.
PINO COLONE, M.D.,
Plaintiff-Appellee,
v
No. 287625
Genesee Circuit Court
LC No. 07-086428-CZ
PATRICK R. WARDELL and HURLEY
HOSPITAL BOARD OF MANAGERS, a/k/a
HURLEY MEDICAL CENTER,
Defendants-Appellants,
and
UNIVERSITY OF MICHIGAN BOARD OF
REGENTS and UNIVERSITY HOSPITAL,
Defendants.
PINO COLONE, M.D.,
-1-
Plaintiff-Appellee,
v
PATRICK WARDELL and FLINT BOARD OF
HOSPITAL MANAGERS, d/b/a HURLEY
MEDICAL CENTER,
No. 289111
Genesee Circuit Court
LC No. 07-086428-CZ
Defendants-Appellants,
and
REGENTS OF UNIVERSITY OF MICHIGAN,
a/k/a UNIVERSITY OF MICHIGAN, a/k/a
UNIVERSITY HOSPITAL,
Defendant.
Before: HOEKSTRA, P.J., and BECKERING and SHAPIRO, JJ.
PER CURIAM.
In Docket No. 287601, defendant Regents of the University of Michigan (U of M)
appeals by leave granted the trial court’s August 20, 2008 order denying its motion for summary
disposition of plaintiff’s claims under the Elliot-Larsen Civil Rights Act (ELCRA), MCL
37.2101 et seq., and the Whistleblower’s Protection Act (WPA), MCL 15.361 et seq. In Docket
No. 287625, defendants Board of Hospital Managers of Hurley Medical Center (HMC) and
Patrick Wardell appeal by leave granted the same August 20, 2008 order denying their motion
for summary disposition of plaintiff’s ELCRA claim. In Docket No. 289111, HMC and Wardell
appeal by leave granted the trial court’s November 5, 2008 order denying their motion for
summary disposition of plaintiff’s First Amendment claim. We reverse.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is a physician previously employed by U of M. U of M contracts with HMC to
provide physicians for HMC’s emergency department. The nurses, physician assistants, and
other support staff in the emergency department are employed directly by HMC. Wardell is the
president of HMC. Plaintiff was assigned to the HMC emergency department in November 1995
and worked there until May 2007 when he was removed and offered a reassignment to Foote
Hospital. U of M removed plaintiff at the request of Wardell, who allegedly made the request in
response to a mass e-mail plaintiff sent on April 27, 2007. That e-mail was highly critical of one
of HMC’s nurses, Stephen Nokovich, as well as other employees, and was sent to 37 people,
including physicians employed by U of M, and physician assistants, nurses, and non-emergency
department administrators employed directly by HMC. Plaintiff maintains that the e-mail was a
protected communication under the ELCRA and WPA, and that defendants retaliated against
him for reporting patient safety and sexual harassment issues. Defendants argue that plaintiff’s
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e-mail was not a protected communication, was inappropriate, and caused intolerable disruption
in HMC’s emergency department, which required plaintiff’s transfer.
At his deposition, plaintiff testified that between 1995 and 2005, he witnessed
inappropriate, sexually oriented interaction between staff members at HMC, including
“inappropriate language, sexual innuendos, sitting on people’s laps, grabbing buttocks, and
things along those lines.” Plaintiff could not recall whether he filed any complaints regarding the
behavior. He testified that in late April or early May 2006, he observed one emergency
department nurse photograph another nurse’s bare breasts as part of a joke. Both plaintiff and
Nokovich were present in the room when the photograph was taken. At a physicians’ retreat on
May 10, plaintiff complained of a lack of professionalism in the emergency department and of
how “attending physician behavior was influencing the activity and behavior in the department,”
referring to the photography incident as an example.
Later in May, plaintiff sent an e-mail to Dr. Mike Jaggi, the director of emergency
medicine at HMC, and Carol Fechik, Nokovich’s supervisor, regarding an incident on May 22
when Nokovich allegedly left a room during an intubation procedure. Plaintiff testified that he
believed Nokovich left the room in retaliation for plaintiff’s statements at the physicians’ retreat
and maintained in the e-mail that Nokovich’s actions were unprofessional and jeopardized
patient safety. Nurse Jamie Wardlaw, plaintiff’s “on-again-off-again” girlfriend with whom he
had a child, was assigned to the patient. Wardlaw wrote a letter to Wardell, and plaintiff wrote a
report, stating that Nokovich “walked out” of the room when the patient was to be intubated.
Nokovich testified that he did not leave the room until after his duties were complete, and
plaintiff admitted that the patient was never left without a nurse and was intubated without
incident. In light of plaintiff’s e-mail complaint, HMC investigated the incident, but could not
wholly substantiate the allegations against Nokovich and took no action against him. In October
2006, plaintiff filed a complaint regarding the same incident with the Michigan Department of
Community Health (MDCH). Over the next few months, the MDCH reviewed the matter, but
determined that no health code violation could be verified.
Also in October 2006, plaintiff and three female nurses, including Wardlaw, met with
HMC’s general counsel, William Smith, to complain of unprofessional conduct in the emergency
department. This unprofessional conduct was at least partially of a sexual nature, and allegedly
involved sexual harassment. Plaintiff complained of similar conduct to Dr. Jaggi. It is unclear
whether any of the complained-of conduct involved Nokovich. HMC and U of M investigated
the complaints, conducting 38 employee interviews, but ultimately determined that the
complaints could not be corroborated.
In March 2007, plaintiff became involved in a dispute with fellow emergency department
physician Dr. Michael Roebuck regarding punctuality and signing in and out of their respective
shifts. The dispute resulted in accusations being made against each other by e-mail, which were
sent to U of M’s emergency department chair Dr. William Barsan. In response to a critical email from plaintiff, Dr. Barsan sent an e-mail to both plaintiff and Dr. Roebuck stating that “[e]mail is not an appropriate venue for airing differences . . . .” The e-mail continued: “This whole
discussion started because of issues about professionalism—please remember that and BE a
professional. If you can’t do this, you shouldn’t be working.” Dr. Barsan instructed that a faceto-face meeting and mediation should be arranged.
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On April 3, 2007, plaintiff filed an incident report alleging that Nokovich failed to
administer medications as ordered. Nokovich testified that he could not recall the incident. On
April 13, plaintiff filed another report alleging that Nokovich failed to notify him of the arrival of
a trauma patient and had lied about informing him. At his deposition, Nokovich described the
incident and testified that he did, in fact, inform plaintiff about the patient.
On April 26, Dr. Jaggi sent plaintiff an e-mail summarizing the topics discussed at a
recent staff meeting. The e-mail was sent to plaintiff and approximately 30 of his coworkers.
The next day, April 27, plaintiff replied to that e-mail with an e-mail message to Dr. Jaggi, all of
the employees who received the original e-mail from Dr. Jaggi, and several additional HMC
employees who had not received the original e-mail. Plaintiff’s e-mail contained the following
pertinent language:
Thanks for the summary of the faculty meeting. I have concerns regarding
the position of flow manager, which is item number 6. Since our meeting it has
been rumored that Steve Nokovich is getting or being considered for this position.
I have serious concerns about this. He is not a good nurse, he is lazy and neither
works well nor communicates effectively with others. Over the past year I have
provided you, nursing management, Dwayne Parker and Bill Smith with multiple
examples of his ineptitude. Additionally, recently, as you and nursing
management are also aware, he and others on third shift are fabricating issues to
distract from their incompetence, for example, last week Carol told me that
someone filled out an incident report 3 days prior, stating that I did not inform the
charge nurse of a transfer of a patient on May 11, 2006.
It would be a great disservice to the position and to this department if he
or any of the other individuals in question, who continue to be the cancers and the
impediments to patient satisfaction, were to assume this role. I would be happy to
discuss this further with anyone interested.
Several physicians who were recipients of the e-mail pointed out to plaintiff that a mass
e-mail was not the appropriate place to raise complaints about a single employee. Wardell
subsequently sent Dr. Barsan a letter dated May 4, 2007, stating, in relevant part:
As you are aware, recently there was an e-mail communication from one
of the University of Michigan physician employees, Dr. Pino Colone, to a large
number of Hurley Medical Center staff, which was extremely critical of a Hurley
employee. Like most healthcare facilities, Hurley Medical Center has a number
of appropriate avenues for concerns of physicians and others to be addressed. The
communication did not utilize an appropriate avenue, and also, was widely
disseminated.
As you can imagine, this action has led to considerable disruption in our
emergency department, which cannot be tolerated. With this in mind, we ask that
you no longer assign this physician to staff Hurley Medical Center’s emergency
department effective immediately.
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After receiving the letter from Wardell, Dr. Barsan removed plaintiff from HMC in Flint,
Michigan, and offered him a transfer to Foote Hospital in Jackson, Michigan. The reassignment
involved the same title, job duties, benefits, and pay as plaintiff’s assignment at HMC. At the
time of the reassignment, plaintiff lived in Howell, Michigan. His drive to work would have
been approximately 30 miles longer to Foote Hospital than to HMC. In addition to the longer
commute, plaintiff considered the reassignment an affront to his professional reputation.
Plaintiff ultimately declined to accept the transfer to Foote Hospital and resigned from U of M on
August 31, 2007. The next day, plaintiff began a new job with St. Mary Mercy Hospital in
Livonia, Michigan, which was approximately the same distance from his home as HMC.
Plaintiff’s employment with St. Mary Mercy Hospital provides similar or better benefits and
pays approximately $50,000 more per year than his former employment with U of M.
In June 2007, before plaintiff resigned from U of M, he initiated this action, filing a
complaint against defendants alleging conspiracy, a public policy violation, and a WPA claim.
In March 2008, plaintiff filed a first amended complaint, adding a claim under the ELCRA.
Defendants subsequently moved for summary disposition of plaintiff’s claims under MCR
2.116(C)(7) and (C)(10). The trial court granted defendants summary disposition of plaintiff’s
conspiracy and public policy claims and granted HMC and Wardell summary disposition of
plaintiff’s WPA claim because they were not plaintiff’s employers. The court denied HMC and
Wardell summary disposition of plaintiff’s ELCRA claim, and denied U of M summary
disposition of plaintiff’s ELCRA and WPA claims, finding that genuine issues of material fact
existed for the finder of fact. The trial court signed a written order to this effect on August 20,
2008.
In the meantime, in July 2008, plaintiff filed a second amended complaint adding a count
against HMC and Wardell for violating his First Amendment rights. Plaintiff alleged that he was
engaged in activity protected by the First Amendment when he reported sexual harassment and
violations of hospital rules and regulations affecting the safety and well-being of patients.
According to plaintiff, he had a right to petition government agencies to correct those conditions
and defendants retaliated against him for doing so.
HMC and Wardell moved for summary disposition of plaintiff’s First Amendment claim
under MCR 2.116(C)(10). The trial court denied the motion, finding that plaintiff was not an
employee of HMC and there was no evidence he was required “to take his complaints to the
level that he did,” that plaintiff’s complaints involved matters of public concern, and that
material questions of fact existed as to whether those complaints were related to an adverse
employment consequence. The trial court issued its written order denying HMC and Wardell
summary disposition on November 5, 2008.
U of M filed an application for leave to appeal in this Court. HMC and Wardell filed a
separate application. This Court granted the applications and consolidated the cases.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo on the
basis of the entire record to determine if the moving party is entitled to judgment as a matter of
law. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion
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under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, we consider all of
the substantively admissible evidence submitted by the parties in the light most favorable to the
nonmoving party, and summary disposition is appropriate only when the evidence fails to
establish a genuine issue regarding any material fact. MCR 2.116(G)(6); Maiden, 461 Mich at
119-120.
III. THE WPA AND ELCRA CLAIMS
Defendants argue that the trial court erred in denying their motions for summary
disposition on plaintiff’s ELCRA claims because plaintiff failed to establish a prima facie case.
Specifically, they claim that plaintiff was unable to show a causal connection between any
protected activity and his reassignment to Foote Hospital. In addition, U of M claims that
plaintiff’s reassignment to Foote Hospital was not an adverse employment action. For the same
reasons, U of M argues that the trial court erred in denying its motion for summary disposition
on plaintiff’s WPA claim. We agree that plaintiff has failed to establish a prima facie case under
either the WPA or the ELCRA.
To establish a prima facie case under the WPA, “a plaintiff must show that (1) the
plaintiff was engaged in protected activity as defined by the act, (2) the plaintiff was discharged
or discriminated against, and (3) a causal connection exists between the protected activity and
the discharge or adverse employment action.” West v Gen Motors Corp, 469 Mich 177, 183184; 665 NW2d 468 (2003). Similarly, to establish a prima facie case of retaliation under the
ELCRA, “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.” DeFlaviis v Lord & Taylor Inc, 223 Mich App 432, 436; 566
NW2d 661 (1997). We conclude that plaintiff has failed to establish a causal connection
between any protected activity and the alleged adverse employment action.1
Plaintiff claims that the e-mail he sent on April 27, 2007, to Dr. Jaggi and more than 30
of his coworkers was protected activity.2 We repeat the language of the e-mail:
Thanks for the summary of the faculty meeting. I have concerns regarding
the position of flow manager, which is item number 6. Since our meeting it has
been rumored that Steve Nokovich is getting or being considered for this position.
1
We make no conclusion whether plaintiff’s reassignment from HMC to Foote Hospital could be
considered an adverse employment action.
2
Plaintiff does not dispute that he was transferred because of his mass e-mail. In fact, he seeks
to hold defendants to their statements made in discovery and before the trial court that he was
transferred because of the mass e-mail. We note that plaintiff assumes that his mass e-mail was
protected activity. He presents us with no argument that, pursuant to case law, the mass e-mail
was activity protected under either the WPA or the ELCRA.
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I have serious concerns about this. He is not a good nurse, he is lazy and neither
works well nor communicates effectively with others. Over the past year I have
provided you, nursing management, Dwayne Parker and Bill Smith with multiple
examples of his ineptitude. Additionally, recently, as you and nursing
management are also aware, he and others on third shift are fabricating issues to
distract from their incompetence, for example, last week Carol told me someone
filled out an incident report 3 days prior, stating that I did not inform the charge
nurse of a transfer of a patient on May 11, 2006.
It would be a great disservice to the position and to this department if he
or any of the other individuals in question, who continue to be the cancers and the
impediments to patient satisfaction, were to assume this role. I would be happy to
discuss this further with anyone interested.
“Activity protected under the WPA consists of (1) reporting to a public body a violation
of a law, regulation, or rule, (2) being about to report such a violation to a public body, or (3)
being asked by a public body to participate in an investigation.” Ernsting v Ave Maria College,
274 Mich App 506, 510; 736 NW2d 574 (2007); see also MCL 15.362. Protected activity under
the ELCRA consists of “oppos[ing] a violation of th[e] act, or . . . mak[ing] a charge, fil[ing] a
complaint, testif[ying], assist[ing], or participat[ing] in an investigation, proceeding, or hearing
under th[e] act.” MCL 37.2701(a); see also Barrett v Kirtland Community College, 245 Mich
App 306, 318; 628 NW2d 63 (2001).
In his mass e-mail, plaintiff responded to a summary, written by Dr. Jaggi, of the topics
discussed at a recent faculty meeting. One of the topics discussed at the meeting was the pilot
use of a “flow manager” in the emergency department. In his e-mail, plaintiff expressed his
concerns regarding the rumors that Nokovich was being considered for the position. Plaintiff’s
obvious purpose in sending the e-mail was to communicate his perceived incompetence of
Nokovich, as well as the third-shift nursing staff generally. The e-mail stated that Nokovich was
“lazy,” did not work or communicate well with others, and fabricated issues to distract from his
incompetence. The reference to plaintiff’s prior reports were made in support of the general
proposition of the e-mail, that being Nokovich’s unsuitability for the position of “flow manager.”
Thus, although plaintiff made a general reference to his prior complaints regarding Nokovich,
the e-mail did not clearly convey that plaintiff was reporting a violation of a law, regulation, or
rule, or was either opposing a violation of, or making a change under, the ELCRA. See Barrett,
245 Mich App at 318-319 (“An employee need not specifically cite the [ELCRA] when making
a charge under the act. However, . . . [t]he employee’s charge must clearly convey to an
objective employer that the employee is raising the specter of a claim of unlawful discrimination
pursuant to the [ELCRA].”). Because plaintiff’s mass e-mail did not report a violation of the
law, nor did it oppose a violation of, or make a charge under, the ELCRA, the sending of the
mass e-mail was not protected activity.
Alternatively, plaintiff argues that protected activity he engaged in before he sent the
mass e-mail was causally connected to his reassignment to Foote Hospital. Defendants do not
dispute that plaintiff engaged in protected activity under the WPA when in October 2006 he filed
a complaint with the MDCH that Nokovich abandoned a patient. Defendants also do not dispute
that plaintiff engaged in protected activity under the ELCRA when in October 2006 he
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complained to officials about inappropriate sexual behavior in the emergency department.
However, the mere fact that plaintiff was transferred to Foote Hospital after he engaged in
protected activity in October 2006, or even after he complained of sexually offensive behavior at
physicians’ meetings or after he filed two incident reports in April 2007 regarding Nokovich,
does not demonstrate the necessary causal connection. “[A] temporal relationship, standing
alone, does not demonstrate a causal connection between the protected activity and any adverse
employment action.” West, 469 Mich at 186. “[A p]laintiff must show something more than
merely a coincidence in time between protected activity and adverse employment action.” Id.
Plaintiff claims that he has satisfied the “something more” than merely a temporal
relationship standard based on the fact that Wardell and Dr. Barsan knew of plaintiff’s protected
activity before plaintiff was reassigned.
The Supreme Court in West, 469 Mich at 186-187, cited Henry v Detroit, 234 Mich App
405; 594 NW2d 107 (1999), as an example of when a plaintiff has presented evidence to show
more than a coincidence in time between protected activity and the adverse employment action.
In Henry, four months after the plaintiff, a member of the Detroit Police Department, testified in
a lawsuit against the city, he was forced to choose between a demotion or retirement. But the
plaintiff presented evidence that, following his testimony, he was told that the chief of police was
upset with him and believed that his testimony would cost the city a lot of money. The plaintiff
also presented evidence that he was being treated differently by the police chief. This Court
concluded that, under the circumstances, it was reasonable to conclude that the plaintiff’s choice
between a demotion and retirement was the result of his testimony. Henry, 234 Mich App at
414.
Unlike in Henry, plaintiff has not presented any evidence that his superiors were upset
about any of his protected activity. There is no evidence that, after engaging in any protected
activity, plaintiff was treated differently than before, that his job duties were altered, or that he
was threatened to stop making complaints. Rather, the only consequences of plaintiff’s
complaints that appear on the record is that several of his complaints were duly investigated and
that no action was taken against Nokovich or any other nurse or doctor because of insufficient
proof of misconduct. Consequently, under the circumstances of this case, plaintiff has failed to
show a causal connection between any protected activity and his reassignment to Foote Hospital.
IV. THE FIRST AMENDMENT CLAIM
HMC and Wardell argue that the trial court erred in denying their motion for summary
disposition on plaintiff’s First Amendment claim. We agree.
“[T]he First Amendment does not prohibit managerial discipline based on an employee’s
expressions made pursuant to official responsibilities.” Garcetti v Ceballos, 547 US 410, 424;
126 S Ct 1951; 164 L Ed 2d 689 (2006). “[W]hen public employees make statements pursuant
to their official duties, the employees are not speaking as citizens for First Amendment purposes,
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and the Constitution does not insulate their communications from employer discipline.” Id. at
421.3
After plaintiff sent his mass e-mail, Wardell sent a letter to Dr. Barsan requesting that
plaintiff no longer be assigned to HMC’s emergency department, because plaintiff had sent an email, which was widely disseminated, that was “extremely critical” of a fellow employee and led
to considerable disruption. The evidence fails to create a genuine issue of material fact that
Wardell’s request that plaintiff be reassigned to another hospital was due to anything but
plaintiff’s mass e-mail. As already explained, plaintiff fails to show a causal connection between
his reassignment to Foote Hospital and any of his prior reports of inappropriate sexual behavior
or inept nursing care. Plaintiff sent his mass e-mail in response to the e-mail from Dr. Jaggi
summarizing a recent staff meeting, where the position of a “flow manager” was discussed. In
his mass e-mail, plaintiff, addressing the rumors that Nokovich was being considered for the
“flow manager” position, stated his “serious concerns” about Nokovich. The mass e-mail—
which concerned whether Nokovich was competent to serve as the “flow manager”—was made
as part of plaintiff’s official responsibilities. See Davis v Cook Co, 534 F3d 650, 652-654 (CA 7,
2008). Because the speech which led to plaintiff’s reassignment to Foote Hospital was made
pursuant to his duties, the speech is not constitutionally protected. Garcetti, 547 US at 424, 426.
Reversed.
/s/ Joel P. Hoekstra
/s/ Douglas B. Shapiro
3
We reject plaintiff’s argument that Garcetti and the other cases cited by HMC and Wardell do
not apply because he was an independent contractor of HMC, rather than an employee. Federal
case law establishes that independent contractors are subject to Garcetti in the same way as
employees. See, e.g., Ansell v D’Alesio, 485 F Supp 2d 80, 84-85 (D Conn, 2007).
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