Wrongful discharge; The Whistleblowers’ Protection Act (WPA) (MCL 15.361 et seq); MCL 15.362; “Protected activity”; Whether reporting suspected malpractice falls under the WPA; Landin v Healthsource Saginaw, Inc; Alleged insurance fraud; “Reporting”; Mudge v South Lyon; Causal connection; The burden-shifting framework; A close temporal relationship; Henry v Detroit; West v General Motors Corp; Wrongful discharge in violation of public policy (WDPP); Suchodolski v Michigan Consol Gas Co; Preemption; Applicability of the “public policy” recognized in Landin to plaintiffs’ claims of malpractice; MCL 333.20176a(1)(a); “Health facility or agency”; MCL 333.20106(1); Public Health Code (PHC)

The court affirmed summary disposition for defendants on plaintiffs’ WPA claims as to a dentist’s (E) alleged malpractice and plaintiff-Welch’s WPA claim as to reporting insurance and billing fraud. And summary disposition on plaintiffs’ WDPP claims was also proper. But the court reversed as to plaintiff-Shephard’s WPA claim related “to her reports of actual and proposed insurance and billing fraud.” Under Landin, the court concluded that “reports of suspected malpractice are not covered by the WPA.” Thus, in this regard, “plaintiffs were not engaged in a protected activity, and” these claims did not fall under the WPA. But their insurance claims were another matter. “Shephard reported the Blue Cross Complete insurance issue at a morning meeting of the entire office, including [E], and specifically reported to [E] that he could not bill a snore guard, which was not a covered item, as a bite guard, which was covered.” But as to Welch, the question was whether the trial court erred in determining that the undisputed facts showed “Shephard reported the insurance fraud on her own behalf only, but did not also do so on behalf of Welch.” Welsh’s testimony revealed that she “had no agreement for Shephard to speak on behalf of Welch, but only sat in silence as Shephard spoke. Under the Supreme Court’s holding in Mudge, Welch’s quietly agreeing with Shephard was not enough to qualify as protected activity under the WPA.” As to the causal connection element, the court found this case more similar to Henry than to West. “Like the plaintiff in Henry, Shephard testified that her reporting of insurance fraud was met with distaste by supervisors.” Also like the plaintiff in that case, she “was fired about four months after engaging in the protected activity.” The court went on to conclude that considering “Shephard’s and Welch’s denials of the reasons defendants cite as legitimate bases for terminating Shephard’s employment, and the further evidence that defendants had a motive to fire Shephard,” sufficient proof was presented that would allow a reasonable fact-finder to still determine that Shephard’s “protected activity was a ‘motivating factor’ for the employer’s adverse action.” But as to the WDPP claims, the PHC “has no ‘explicit legislative statement' regarding the retaliatory firing of an employee for reporting dental malpractice in a private dental office[.]” Remanded.