The Importance of a Well-Played Strategy Before Employment Terminates

Print
By:  Claudia D. Orr

Not all appellate decisions favor the employee, but I am mindful that I tend to report on decisions that warn employers of what not to do.  But every now and then I like to report on a decision that may encourage readers and perhaps result in the happy dance.  While Cuevas v The Board of Hospital Managers of Hurley Medical Center is an unpublished opinion of the Michigan Court of Appeals, it demonstrates just how important it is to seek legal advice before employment terminates! Let’s look at what happened in this case involving allegations of intentional infliction of emotional distress and a whistleblower’s claim.

First, the intentional infliction of emotional distress claim. This is generally a throw away claim included by some plaintiffs’ attorneys to give the judge a claim to toss if they are inclined to “split the baby” when the employer seeks dismissal of the complaint by way of a motion for summary disposition (called summary judgment in federal court).  This is an intentional tort claim that requires the defendant to engage in extreme and outrageous conduct.  This particularly high threshold eliminates “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” It has to exceed the “bounds of decency” and cause the average person to exclaim “Outrageous!” I remember a case studied in law school that involved a defendant who intentionally delivered false news to the plaintiff that a spouse or child had died. That is the sort of egregious conduct required to support such a claim.

Here, plaintiff was omitted from an email lunch invitation, was denied the opportunity to alter her schedule on one occasion, verbally told to comply with the dress code, reprimanded once for being rude to her supervisor, had scores on her performance review lowered and was assigned a different office.  Shocking! Good grief.  

What is shocking is that the trial court refused to dismiss the claim. However, the appellate court reversed, stating: “The actions complained of occur routinely in a workplace environment.  They are not unusual or unexpected within an employment situation, and do not exceed the bounds of decency. While plaintiff was upset by the various events, the actions complained of do not rise to the level necessary to sustain a claim for intentional infliction of emotional distress.”

Next the appellate court tackled the whistleblower’s claim.  Plaintiff had several problems with this claim including that the evidence showed one of the individual defendants, not plaintiff, discovered the alleged mishandling of documents, reported it and devised a solution before plaintiff ever reported the problem!  Apparently plaintiff was a whistleblower “come lately”, making her claim “unpersuasive”. 

That wasn’t her only problem with this claim.  Plaintiff also alleged that, because medical documents were not being timely scanned into medical records, malpractice could result.  But the appellate court rejected the theory that a whistleblower claim could be based on a potential future event, stating: “MCL 15.362 contains no language indicating that future, planned, or anticipated acts amounting to a violation or a suspected violation of a law are included with the scope of the WPA.  Consequently, a stated intention to commit an act amounting to a violation of a law in the future does not constitute ‘a violation…’”  

Finally, as with civil rights claims, a whistleblower claim requires an adverse employment action. This typically requires termination, demotion, cut in pay, etc. Here, plaintiff resigned while on an extended medical leave of absence and argued she was “constructively discharged” because of the “ongoing ‘tension’” she felt at work.  Based on experience, who wants to bet that the leave of absence was for “stress” after a poor review? 

Resignations are always good news for a defense attorney because it requires the plaintiff to prove that the “employer deliberately [made the] employee’s working conditions so intolerable that the employee [was] forced into an involuntary resignation or, stated differently, when working conditions become so difficult or unpleasant that a reasonable person in the employee’s shoes would feel compelled to resign.”

Plaintiff’s subjective complaints about the “ongoing tension” failed to rise to the level required to prove constructive discharge.  Plus, defendants presented evidence that they fully expected plaintiff to return to the same job after her medical leave ended and she was eligible for an open position even after she quit.

As a defense attorney, I can see there were a lot of strategic moves made by the employer long before plaintiff’s employment ended and defense counsel was likely involved each step of the way.  Whenever an employee is in the process of setting up a claim, you should always consult with experienced employment counsel, such as the author.

This article was written by Claudia D. Orr, who is Chair of the Legal Affairs Committee of Detroit SHRM, and an experienced labor/employment attorney at the Detroit office of Plunkett Cooney (a full service law firm and resource partner of Detroit SHRM).  She can be reached at corr@plunkettcooney.com or at (313) 983-4863. For further information go to: http://www.plunkettcooney.com/people-105.html.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information, is included in the re-post of the article. January 2017.