The termination and suspension of two laboratory technologists from a clinical laboratory did not violate Michigan’s Whistleblowers’ Protection Act, Mich. Comp. Laws, § 15.361 et seq., the U.S. Court of Appeals for the Sixth Circuit has ruled. Hilden et al. v. Hurley Med. Ctr. et al., No. 11-2583 (6th Cir. Nov. 5, 2012). The Court also found that the technologists failed to show that any adverse action taken against them was causally related to the filing of their lawsuit, which occurred after the adverse employment actions.

Background

Sally Hilden and Jerome Flynn worked as medical technologists at Hurley Medical Center, a clinical laboratory located in Flint, Michigan. The laboratory processed microbiology specimens received from doctors’ offices in containers known as “transport media.” Laboratory procedures required that after receipt, a technologist would set up a culture to grow the bacteria. Once a bacterium specimen grew, a technologist would analyze it and report to the physician. 

On January 19, 2010, a technologist noticed that the laboratory had received expired transport media, notified HMC’s “outreach troubleshooter group,” the liaison with physicians’ offices, and requested that the group contact the physician’s office and discard any other expired transport media. The message also indicated that the culture had been prepared. The next day, Hilden asked the troubleshooter group to request a new specimen from the physician, stating that the use of expired transport media violated a Joint Commission for Accreditation of Hospitals Organization standard. Hilden then discarded both the specimen and the culture. 

Later the same day, HMC’s chief microbiologist, Varuna Tewari, directed the laboratory staff that when expired transport media were received, the microbiology department should be notified so that a new specimen could be requested from the physician’s office. Tewari also instructed technologists to culture the specimens because, in many cases, patients do not return for re-testing, and pathogens could be recovered using the existing culture. 

The next day, Hilden and Flynn complained to their supervisor and the administrative director of the laboratory about Tewari’s directive, asserting that it violated the Joint Commission standards. Hilden then discarded two more cultures obtained from expired transport media. Meanwhile, Tewari confirmed his views regarding processing expired transport media with the HMC official responsible for interpreting Joint Commission standards. 

Thereafter, the administrative director discovered that Hilden had destroyed specimens and cultures in contravention of Tewari’s directive and placed Hilden on administrative leave. Hilden soon was terminated for violating Tewari’s directive. However, while on administrative leave, Hilden filed an internal workplace complaint against Tewari and the administrative director for harassment and intimidation. The complaint ultimately was dismissed as unfounded. Although Hilden had already been terminated by this time, HMC sent her a second notice of discharge, nearly two months after the first, stating that her filing of a false unsafe workplace complaint provided an additional basis for her discharge.

Flynn also violated Tewari’s directive by discarding a swab of expired transport media that another technologist had prepared for processing. Flynn’s violation was considered less serious than Hilden’s because he did not discard the culture plate, which allowed the laboratory to complete processing of the specimen. HMC suspended Flynn for 15 days for insubordination for violating Tewari’s directive. 

Hilden and Flynn sued HMC for violations of Michigan’s Whistleblowers’ Protection Act. The district court granted summary judgment to the employer, finding no violation of the law and the plaintiffs had failed to establish a causal connection between Hilden’s termination, Flynn’s suspension, and their complaints about Tewari’s directive.

Applicable Law

The Whistleblowers’ Protection Act prohibits employers from discharging or otherwise discriminating against an employee because “the employee . . . reports . . . a violation or suspected violation of a law or regulation.” To establish a prima facie case, the plaintiff must prove that he or she was engaged in protected activity, suffered an adverse employment action, and a causal connection existed between the protected activity and the adverse employment action. To demonstrate a causal link, it is not enough for a plaintiff to “show[] that his employer disciplined him after the protected activity occurred.” West v. General Motors Corp., 665 N.W.2d 468, 472 (Mich. 2003). A plaintiff must show that he was disciplined “because of [the] protected activity.”

In addition, a plaintiff must prove that he or she suffered an “adverse employment action.” Michigan courts have defined “adverse employment action” under the WPA “as an employment decision that is materially adverse in that it is more than a mere inconvenience or an alteration of job responsibilities and that there must be some objective basis for demonstrating that the change is adverse.” Heckmann v. Detroit Chief of Police, 705 N.W.2d 689, 697 (Mich. Ct. App. 2005).

Whistleblower Claims Lack Causation

Hilden and Flynn argued their termination and suspension were caused by their complaints regarding Tewari’s directive. The Court disagreed. It noted that HMC addressed their concerns in a timely manner and confirmed that Tewari’s directive was reasonable. HMC disciplined Hilden and Flynn only after it discovered that they had disregarded the directive. Further, the Court pointed out, they admitted they violated the directive. 

Hilden then argued that the second notice of termination, which referenced her filing a false “unsafe workplace” complaint as an additional reason for her discharge, provided evidence of HMC’s retaliatory motive. The Court rejected this argument, as well, finding the second notice did not constitute an adverse employment action because it did not effectuate an adverse change in her employment since Hilden already was fired. 

Lastly, Hilden argued that she suffered an adverse employment action on the basis that she was terminated for filing her lawsuit. The Court also found this argument unpersuasive because HMC fired her before she sued. In addition, the Court said that sending Hilden a second notice, albeit after she filed the suit, did not constitute an adverse employment action under the WPA. Accordingly, the Court affirmed summary judgment in favor of the employer.

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By responding in a measured way to its employees’ concerns, the employer here was well-positioned to defend its employment actions.

The employees’ mistake was that they took matters into their own hands. They destroyed patient specimens, and compounded their errors by failing to tell their supervisors. It was clear to the Court that the hospital’s decision to terminate and suspend the employees was not related to their complaints, but to their blatant disregard of management’s directives.