Khalifa v. Henry Ford Hosp.
| Decision Date | 24 March 1987 |
| Docket Number | Docket No. 84582 |
| Citation | 401 N.W.2d 884,156 Mich.App. 485 |
| Parties | Ahmed A. KHALIFA, Plaintiff-Appellee, v. HENRY FORD HOSPITAL and Pedro Cortes, M.D., Defendants-Appellants. 156 Mich.App. 485, 401 N.W.2d 884 |
| Court | Court of Appeal of Michigan — District of US |
[156 MICHAPP 487] Gottlieb & Goren, P.C. by Charles Gottlieb, Detroit, for plaintiff-appellee.
Keller, Thoma, Schwarze, Schwarze, Du Bay & Katz, P.C. by Terrence J. Miglio and Donna R. Nuyen, Detroit, for defendants-appellants.
Before MAHER, P.J., and CYNAR and GILLESPIE, * JJ.
Defendants appeal, by leave granted, from two parts of an order of Wayne Circuit Judge Charles S. Farmer, dated April 18, 1985.
The suit brought by the plaintiff alleges as one count a breach of employment contract. The defendants moved for summary disposition pursuant to MCR 2.116(C)(7), alleging the claim to have been barred by reason of a prior judgment.
The basis for that portion of the motion was that plaintiff had availed himself of the full grievance procedure through the hospital's grievance council and judgment was rendered against him.
The second portion of the motion was that plaintiff[156 MICHAPP 488] had failed to state a claim upon which relief could be granted. MCR 2.116(C)(8).
The third ground, under MCR 2.116(C)(10), was that plaintiff had not raised a genuine issue of material fact.
Judge Farmer denied this motion, subject to a right to refile if the Michigan Supreme Court decided favorably to defendants' position in the case of Fulghum v. United Parcel Service, Inc., 130 Mich.App. 375, 343 N.W.2d 559 (1983). Fulghum was affirmed in 424 Mich. 89, 378 N.W.2d 472 (1985).
The defendants' second motion for summary disposition was as to a claim of intentional infliction of emotional distress during plaintiff's employment. This motion was likewise denied.
The defendants' third motion was for summary disposition of plaintiff's claim for defamation. This motion was granted. Judge Farmer cited as his basis therefor M.C.L. Sec. 600.5805(7); M.S.A. Sec. 27A.5805(7), now M.C.L. Sec. 600.5805(8); M.S.A. Sec. 27A.5805(8), the three-year statute of limitation.
We reverse as to plaintiff's claim of breach of employment contract and intentional infliction of emotional distress and affirm as to summary disposition of the defamation claim.
Plaintiff, Ahmed A. Khalifa, was born in Egypt. He received a Bachelors and Masters Degree in biochemistry in that country. He received a Ph.D. in physiology at Wayne State University.
He was hired in August, 1979, by Henry Ford Hospital, which is a private, nonprofit health care facility. He was hired as a research coordinator in the nephrology department research laboratory. His immediate supervisor was defendant Pedro Cortes, M.D.
[156 MICHAPP 489] Khalifa was assigned to direct, supervise and schedule research activities on a new diabetes research project.
By February, 1981, personal problems developed between the plaintiff and Dr. Cortes. Dr. Cortes requested plaintiff to meet with him to discuss assignment progress. Khalifa refused to go because he alleged that the last time he was so summoned he was "harassed and yelled at." The failure to meet with Dr. Cortes resulted in a disciplinary report.
On March 15, 1981, Khalifa was given a written warning because of poor progress in attainment of work objectives. This was met with a strong rebuttal that: (a) he was denied necessary materials for his work; (b) he was locked out of his laboratory to prevent him from proceeding with his work; (c) he was sabotaged by Dr. Cortes, who not only denied him materials, but assigned him to routine testing work; (d) he was assigned to dangerous work involving carcinogenic materials without recommended safety equipment; (e) Dr. Cortes falsely accused him of being affected with an undefined physical and mental condition; and (f) the purpose of his hire was altered to create the impression he was not performing his work and to eliminate competition with a project run by Dr. Cortes.
Khalifa's complaints about toxicity and ventilation in the laboratory were investigated and while it was determined that the lab was safe, he was told that he should not work with acetonitrile, a chemical needed for the research.
Khalifa was then transferred to a laboratory in the basement of the nephrology laboratory. He refused to report. His rebuttal was that he was being placed under the supervision of a lab technician with a high school education knowing that he [156 MICHAPP 490] would not accept such professional humiliation and that Cortes would be in a position to fire him.
After being given verbal and written communications to report to the new assignment, Khalifa was given a three-day suspension when he refused.
On April 24, 1981, Khalifa's employment was terminated for insubordination because upon return from his suspension he still refused to work at the new assignment, despite being warned that refusal would result in termination for insubordination.
At the time of plaintiff's dismissal, the hospital had in effect personnel policies governing the conduct, work performance and discipline of its employees. These policies and procedures are contained in the hospital's employee handbook which was distributed to all employees. The hospital also had a four-step grievance procedure for resolving the complaints of employees who had been disciplined. This procedure was set forth both in the employee handbook and the HFH (Henry Ford Hospital) Grievance Guide which was also distributed to all employees.
Under the grievance procedure, the grievance is first reviewed by the employee's supervisor, then the employee's department head, and then a representative of the hospital's personnel department. The grievance procedure culminates in a Step Four hearing before the Henry Ford Hospital Employee Grievance Council, which is comprised solely of nonsupervisory employees. No person who has made the initial decision to discipline or terminate the employee The Employee Grievance Council has the authority to uphold, overturn or modify the disciplinary action taken by the hospital. It also has the authority to reinstate discharged employees and to [156 MICHAPP 491] award full or partial back pay. Employees campaign for seats on the Employee Grievance Council and are elected by employees such as plaintiff, for staggered two-year terms. The policies governing the grievance procedure provide that the decision of the Employee Grievance Council is final and binding.
participates in the decision-making process of the council.
On April 22, 1981, plaintiff filed a grievance concerning the written warnings he received. The grievance covered myriad complaints against Dr. Cortes. Plaintiff was provided with a written, self-explanatory response to the grievance by Dr. Cortes.
Plaintiff appealed the grievance to Step Three of the grievance procedure where Gerard Guinane, the representative from the personnel office, upheld the written warnings with the recommendation that the substance of both warnings be consolidated into one warning. He also upheld the three-day suspension.
Plaintiff, after being dismissed, filed an additional grievance. Dr. Cortes again responded in writing. After investigating this grievance, Mr. Guinane also upheld the termination.
Plaintiff appealed the decisions relative to his grievance to the Employee Grievance Council. A hearing before the council was held on July 14, 1981, at which time plaintiff explained his position and offered evidence on his behalf. Dr. Cortes also appeared and testified. The nine-employee member grievance council voted 7-2 in the hospital's favor, finding that "[t]he hospital was justified in issuing three written warnings which consequently resulted in his termination."
On November 16, 1982, plaintiff filed a complaint in Wayne Circuit Court. On March 6, 1985, the hospital and Dr. Cortes filed a motion for summary disposition on plaintiff's breach of contract[156 MICHAPP 492] claim on the basis that plaintiff's sole and exclusive remedy from any breach of an employment contract was an appeal to and decision by the hospital's grievance council. The hospital and Dr. Cortes also sought summary disposition on plaintiff's claim for intentional infliction of emotional distress since that claim was barred by the decision of the grievance council; the actions of the hospital and Dr. Cortes were allegedly privileged, and plaintiff could not as a matter of law establish a prima facie case of intentional infliction of emotional distress.
The only grounds asserted by plaintiff in opposition to the motion were that: (a) the motion on the breach of contract claim should be held in abeyance pending the outcome of the decision in Fulghum v. United Parcel Service, Inc., supra []; (b) the hospital's grievance procedure did not provide him with procedural due process; (c) the hospital's grievance procedure was not impartial; and (d) the affidavit of plaintiff raised questions of fact, thereby precluding summary disposition.
On April 18, 1985, the trial court denied the motion for summary disposition with respect to plaintiff's claims of breach of contract and intentional infliction of emotional distress. It did, however, grant the motion with regard to plaintiff's claim of defamation. As previously indicated, it is from the denials that defendants appeal.
The first question is whether the court should have granted defendants' motion for summary disposition under MCR 2.116(C)(7).
MCR 2.116(C)(7) provides that summary disposition[156 MICHAPP 493] may be granted for a number of reasons. The one urged in this case is prior judgment by reason of plaintiff's having exercised full rights under the grievance procedure set up by the hospital in its manuals.
It is well settled as a general proposition...
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