Jarvis v. Oakland-Macomb Obstretrics
| Decision Date | 20 April 2022 |
| Docket Number | Civil Action 21-CV-10381 |
| Parties | KATHERINE JARVIS, Plaintiff, v. OAKLAND-MACOMB OBSTETRICS AND GYNECOLOGY, P.C. AND JOHN MICALLEF, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
This matter is presently before the Court on defendants' motion to strike plaintiff's amended complaint or alternatively, dismiss plaintiff's amended complaint in part. (ECF No. 32). Plaintiff has responded and defendants have replied. Pursuant to E.D. Mich. LR 7.1(f)(2), the Court shall decide this motion without a hearing. For the following reasons, the Court shall (1) deny the portion of defendants' motion asking the Court to strike plaintiff's amended complaint and (2) grant in part and deny in part the portion of defendants' motion asking the Court to dismiss certain claims raised in plaintiff's amended complaint.
For approximately fifteen years, plaintiff was employed as a sonographer by defendant Oakland-Macomb Obstetrics and Gynecology, P.C. (“OMOG”). (ECF No. 29, PageID.190, ¶ 1). Defendant John Micallef is the Chief Executive Officer of defendant OMOG. (Id., PageID.191, ¶ 7). Plaintiff states that beginning in March 2020, the Governor of Michigan issued a series of executive orders in response to the COVID-19 pandemic. The orders (1) declared a state of emergency (EO 2020-4); (2) prohibited certain medical providers from performing non-essential procedures (EO 2020-17); (3) imposed “shelter-in-place” requirements (EO 2020-21, 42, 59, 70, 77); and (4) provided various safeguards to protect workers against the virus (EO 2020-91, 97, 114). (Id., PageID.192-94, ¶¶ 19-24). The latter required employers to notify co-workers if an employee reported a positive test result for COVID-19, provide employees with leave or remote work during COVID-19-related quarantine periods, impose a social distancing policy, and supply employees with appropriate protective equipment, among other safety precautions. (Id., PageID.193, ¶ 23). Plaintiff adds that EO 2020-97, in particular, imposed “numerous obligations on healthcare providers, including specific waiting-room procedures, limitations on the number of patient appointments, adding special hours for highly vulnerable patients, establishing enhanced telehealth and telemedicine procedures and a preference for remote work.” (Id., PageID.193-94, ¶ 24). See EO 2020-97(9).
On October 2, 2020, the Michigan Supreme Court held that the governor's executive orders were invalid under state law. In re Certified Questions, 958 N.W.2d 1, 9-25 (Mich. 2020). The Court stated that the Michigan Emergency Management Act (“EMA”) barred the governor from issuing an emergency executive order lasting longer than twenty-eight days without legislative approval. Id. at 9-11. The governor thus lacked any authority to “renew her declaration of a state of emergency or state of disaster based on the COVID-19 pandemic after April 30, 2020.” Id. at 11. The Court further held that the Michigan Emergency Powers of the Governor Act (“EPGA”) “constitute[d] an unlawful delegation of legislative power to the executive and [was] therefore unconstitutional” under the Michigan Constitution. Id. at 16-24. The Court concluded that the Governor did not “possess the authority to exercise emergency powers under the [EPGA] . . . [and] the executive orders issued . . . in response to the COVID-19 pandemic . . . lack any basis under Michigan law.” Id. at 6.
On October 22, 2022, the Michigan Legislature enacted the Michigan COVID-19 Employment Rights Act (“CERA”), MICH. COMP. LAWS § 419.401 et seq., making the act retroactively applicable beginning March 1, 2020. MICH. COMP. LAWS § 419.410. The CERA prohibits an employer from “discharg[ing], disciplin[ing], or otherwise retaliat[ing] against an employee who . . . [o]pposes a violation of this act [or] [r]eports health violations related to COVID-19.” MICH. COMP. LAWS § 419.403(1)(b)-(c). The act requires that employees complete a quarantine period after experiencing COVID-19 symptoms, receiving a positive COVID-19 test result, and/or coming in close contact with an individual who tests positive for COVID-19. MICH. COMP. LAWS § 419.405(1)-(3). As relevant to this case, the act imposes less restrictive requirements on health care professionals. Even if they would otherwise be required to quarantine, it allows health care professionals to “participate in onsite operations when strictly necessary to preserve the function of a facility where cessation of operation of the facility would cause serious harm or danger to public health or safety, ” as long as they are “not experiencing any symptoms[] and [have] not tested positive for COVID-19.” MICH. COMP. LAWS § 419.405(4).
In her amended complaint, plaintiff alleges that beginning in late May 2020, she started “experiencing increased stress related to COVID-19, the requirement that she continue in-person work, and Defendants' failure to institute work rules, practices and protocols in accordance with the Governor's orders.” (Id., PageID.194, ¶ 26). Defendants' alleged conduct includes refusing to (1) provide plaintiff and her coworkers with “protective shields”; (2) notify plaintiff and her coworkers about work-related COVID-19 cases; (3) limit sonography/ultrasound appointments to patients only; (4) follow contact tracing protocol; or (5) institute sufficient screening procedures. (Id., PageID.195-97, ¶¶ 30-37, 44, 47-49). Plaintiff alleges that her COVID-19-related stress resulted in “increasingly frequent migraine headaches” from May 2020 through November 2020, as well as elevated anxiety and depression. (Id., PageID.196-97, ¶¶ 40, 53). During this period, plaintiff allegedly communicated with her supervisor, defendant Micallef, and a shareholder of defendant OMOG. She informed them of her concerns regarding defendants' lack of safety precautions, requested additional safety measures, and indicated that she was experiencing “disabling migraine headache[s]” as a result of her COVID-19-related anxiety. (Id., PageID.194-97, ¶¶ 27, 29-30, 41, 54). She also allegedly contacted the Occupational Safety and Health Administration (“OSHA”) “to learn the process for filing a complaint, ” and advised her supervisor that she was considering filing such a complaint. (Id., PageID.195, ¶¶ 38-39).
On November 17, 2020, plaintiff allegedly attended a meeting with defendants, during which she expressed her concerns regarding defendants' COVID-19-related protocols and her exposure to COVID-19 in particular. (Id., PageID.198-99, ¶¶ 57-65). Plaintiff alleges that at this meeting, defendant Micallef was “dismissive of her concerns, ” “used an angry tone, ” told her that “she was ‘paranoid, '” “advised [her] . . . to immediately cease discussing her dissatisfaction with Defendants' protocols, ” and “described her as ‘impossible to satisfy.'” (Id., PageID.199, ¶¶ 66-70). Plaintiff further alleges that Micallef “created an oral warning for ‘unacceptable personal conduct[, ]' which allegedly took place at the meeting [on] November 17, 2020[, ] and placed the form in [plaintiff's] personal file.” (Id., PageID.200, ¶ 71). On November 24, 2020, plaintiff was informed that “Defendants had concluded that the employment relationship was irreparably damaged and that she was terminated.” (Id., PageID.200, ¶ 72).
Plaintiff's amended complaint contains seven claims: (1) violation of the Family and Medical Leave Act (“FMLA”) (interference) against defendant OMOG, 29 U.S.C. §§ 2612, 2614(a)(1)-(2), 2615(1); (2) violation of the FMLA (discrimination) against defendant OMOG, 29 U.S.C. § 2615(a)(2); (3) violation of Michigan's Persons with Disabilities Civil Rights Act (“PDCRA”) against both defendants, MICH. COMP. LAWS § 37.1201; (4) violation of the Michigan Whistleblowers' Protection Act (“WPA”) against both defendants, MICH. COMP. LAWS § 15.361 et seq.; (5) intentional infliction of emotional distress (“IIED”) against both defendants; (6) termination in violation of public policy against both defendants; and (7) violation of the CERA against both defendants. For relief, plaintiff seeks compensatory and punitive damages, costs, and attorney fees.
Plaintiff filed her initial complaint on February 22, 2021. (ECF No. 1). On October 1, 2021, plaintiff's counsel filed an emergency motion to withdraw (ECF No. 18), which the Court granted in an October 6, 2021, order. (ECF No. 25). In that same order, the Court granted plaintiff thirty days to retain substitute counsel and indicated that otherwise she would be required to proceed pro se. (Id.). On November 1, 2021, plaintiff's current counsel made an appearance in this case. (ECF No. 27). She then orally moved to file an amended complaint at a November 10, 2021, status conference. The Court granted plaintiff's motion over defendants' objections and the amended complaint was filed on December 1, 2021. (ECF No. 29).
In the instant motion, defendants make two alternative requests: (1) strike the amended complaint, pursuant to Fed.R.Civ.P. 15 and 60, as well as E.D. Mich. LR 7.1(h); or (2) dismiss Counts IV, V, VI, and VII of the amended complaint, or portions of these claims, pursuant to Fed.R.Civ.P. 12(b)(6). (ECF No. 32, PageID.227-28). Plaintiff opposes both aspects of defendants' motion.
Defendants first request that the Court strike plaintiff's amended complaint, pursuant to Fed.R.Civ.P. 15 and 60 and E.D. Mich LR 7.1(h). Defendants contend that plaintiff's amended complaint is fifty-one paragraphs...
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