STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

KENISA BARKAI,

Plaintiff, Case No.: 20- -CD

Hon. _______________
v

VHS OF MICHIGAN, INC., d/b/a

DETROIT MEDICAL CENTER,

Defendant.

JAMES B. RASOR (P43476)

ANDREW J. LAURILA (P78880)
RASOR LAW FIRM, PLLC
Attorneys for Plaintiff
201 E. Fourth Street
Royal Oak, MI 48067
248/543-9000 // 248/543-9050 fax
jbr@rasorlawfirm.com
ajl@rasorlawfirm.com
_____________________________________________________________________________/

PLAINTIFF’S COMPLAINT AND JURY DEMAND

There is no other civil action between these parties arising out of the same transaction or occurrence as alleged in
this Complaint pending in this Court, nor has any such action been previously filed and dismissed or transferred
after having been assigned to a judge, nor do I know of any other civil action, not between these parties, arising out
of the same transaction or occurrence as alleged in this Complaint that is either pending or was previously filed and
dismissed, transferred or otherwise disposed of after having been assigned to a Judge in this Court.

_____/s/ Andrew J. Laurila________

Andrew J. Laurila (P78880)

NOW COMES Plaintiff, KENISA BARKAI, by and through her attorneys, RASOR LAW

FIRM, PLLC, and for her Complaint against the above-named Defendant, states as follows:

GENERAL ALLEGATIONS

Parties

1. At all relevant times, Plaintiff, KENISA BARKAI, was a resident of the City of

Woodhaven, County of Wayne, State of Michigan.

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 2. Defendant VHS OF MICHIGAN, INC., d/b/a DETROIT MEDICAL CENTER

(hereinafter “DMC”), is a Delaware corporation authorized to do business in the County of

Wayne, State of Michigan, conducts business throughout southeastern Michigan, and has its

principal place of business in the City of Detroit, County of Wayne, State of Michigan.

3. At all material times, Plaintiff Barkai was an employee of Defendant as a nurse,

specifically employed at DMC’s Sinai-Grace Hospital.

4. This lawsuit arises out of events occurring within the City of Detroit, County of

Wayne, and State of Michigan.

5. This cause of action involves violations of Plaintiff’s civil rights, as secured by the

United States and Michigan Constitutions, and is brought pursuant to the Michigan

Whistleblowers’ Protection Act (herein “WPA”), M.C.L. § 15.361 et seq.

RASOR LAW FIRM, PLLC

6. Defendant DMC is an “employer” within the meaning of the WPA, M.C.L. §

15.361(b).

7. The amount in controversy exceeds $25,000, exclusive of costs, interest, and

attorney fees, and jurisdiction is otherwise proper within this jurisdiction of the Wayne County

Circuit Court.

COMMON FACTUAL ALLEGATIONS

8. Plaintiff reasserts and re-alleges each and every allegation contained in paragraphs

one through 7 of the General Allegations, as if fully set forth herein, paragraph by paragraph, word

for word.

9. Defendant DMC is a health system in Detroit, Michigan, and operates various

medical facilities within the region, including Sinai-Grace Hospital, located in northwest Detroit.

10. Plaintiff was a long-standing employee of DMC, and specifically at Sinai Grace

Hospital.

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 11. As a nurse, Plaintiff’s top priority was the care and protection of patients at Sinai

Grace under the care of DMC.

12. On March 10, 2020, the Michigan Department of Health and Human Services

identified the first two presumptive cases of Covid-19 in the state, and that same day Michigan’s

governor, Gretchen Whitmer, declared a statewide state of emergency.

13. On March 11, 2020, the World Health Organization declared that Covid-19, the

disease caused by the novel coronavirus, was a global pandemic.

14. Several days later, on March 13, 2019, in an attempt to limit the spread and effect

of the virus, Governor Whitmer issued Executive Order 2020-05, which temporarily closed

schools and prohibited mass gatherings statewide, and Executive Order 2020-06, which restricted

visitor access to healthcare facilities.

RASOR LAW FIRM, PLLC

15. Despite the many steps taken by state and the federal government, over the next

several weeks Michigan, and in particular Wayne County and the city of Detroit, experienced a

rapid increase in the amount of confirmed Covid-19 cases and related deaths, with Detroit being

identified as one of the most significant urban “hotspots” of the Covid-19 outbreak after New

York City.

16. On March 17, 2020, in anticipation of the imminently large influx of patients in

need of critical medical care and the insufficient number of nurses and other healthcare providers,

Governor Whitmer entered Executive Order 2020-13, which, among other things aimed at

expanding the state’s healthcare capacity, permitted Michigan’s Department of Licensing and

Regulatory Affairs (LARA) to issue emergency nursing credentials to applicants regardless of

their completion of otherwise mandatory examination requirements.

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 17. By March 31, 2020, Michigan had approximately 7,600 confirmed cases of Covid-

19, mainly concentrated in the southeast part of the State and especially in greater metropolitan

Detroit, with Wayne County accounting for roughly 3,700 cases.

18. These numbers continued to climb, and as of April 15, 2020, Wayne County had

12,544 confirmed Covid-19 cases and suffered 884 coronavirus-related deaths, the fifth largest

amount of coronavirus-related deaths of any county in the United States.

19. The coronavirus pandemic has caused a statewide, and indeed nationwide, shortage

of skilled nurses able to work in hospitals and emergency rooms as well as well-documented

shortages of Personal Protective Equipment (“PPE”) worn by healthcare providers to protect

themselves and patients from coronavirus.

20. Against this backdrop, even before the first confirmed Covid-19 cases in Detroit
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and at Sinai Grace Hospital but after the pandemic had spread from China to Europe, Plaintiff

Barkai had multiple discussions with management and her supervisory personnel at Sinai Grace

warning of insufficient nursing staffing levels and the inherent causal relationship between staffing

issues and employee and patient safety.

21. On or about the end of January or very early February, Plaintiff met with both her

nursing manager and Sinai Grace’s Chief Nursing Officer to report concerns about the lack of

staffing and protective equipment at Sinai Grace, which included Plaintiff telling these high-

ranking individuals she would make a report to proper government agencies about potential

violations.

22. Sinai Grace Hospital is a historically understaffed facility, and Plaintiff believed

that the lack of staffing and preparation would negatively impact the safety of current patients as

well as the hospital’s ability to adequately treat prospective Covid-19 patients.

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 23. As Sinai Grace began taking on Covid-19 patients in March, Plaintiff continued to

express concerns to management and her supervisors about the hospital’s on-going failure to

protect the nursing and medical staff and to failure to provide a safe, uncontaminated environment

for both Covid and non-Covid patients.

24. Sinai Grace’s insufficient staffing and PPE shortage in late February and early

March created unsafe working conditions and even less safe treatment conditions for patients.

25. Due to Sinai Grace’s on-going failure to address her concerns over the lack of

safety for patients and employees, Plaintiff Barkai informed her supervisors that she would be

forced report these safety-related concerns to both the Michigan Occupational Safety and Health

Administration (MiOSHA) and/or the Joint Commission on Accreditation of Healthcare

Organizations (JCAHO), which handles hospital licensing along with Michigan’s Department of
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Licensing and Regulatory Affairs.

26. Despite her on-going concern for employee and patient safety, Plaintiff continued

to work at Sinai-Grace Hospital in mid-March during which time the number of confirmed Covid-

19 cases in the hospital grew exponentially.

27. On March 17, 2020, Plaintiff Barkai met with Sinai Grace’s Director of Nursing,

wherein she again expressed her dismay with facility safety and how the lack of staffing resulted

in prospective dangers to patients, both under her care and at Sinai-Grace generally, mainly due to

nurses like herself being required to care for Covid-19 and non-Covid patients simultaneously

during a shift, which recklessly risked exposing patients to the virus and likely exacerbated the

hospital’s PPE shortage because nurses were forced to remove and discard PPE when moving

from a Covid-19 patient to a non-Covid patient.

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 28. That same day, March 17, 2020, Plaintiff posted a 7-second video on social media

showing herself wearing PPE, including a mask, face shield, and gloves while stating “I have my

gloves, my hair covering, my mask, my gown and I’m ready to rock and roll. I’m going in.”

29. On March 18, 2020, Plaintiff was interviewed by a local-Detroit reporter about the

conditions at Sinai-Grace wherein she reiterated her concerns regarding patient and staff safety

caused by shortages of staff and PPE, which she had previously shared with hospital

administrators and supervisors. 1

30. By late March, Detroit was one of the hardest hit areas in the state and country, and

as the coronavirus pandemic spread Plaintiff continued to express her concerns to management

about staff safety, DMC’s ability to maintain a safe working environment, and patient safety.

31. On or around March 27, 2020, Defendant DMC terminated Plaintiff Barkai’s
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employment for allegedly violating Defendant’s social media policy by posting the 7-second video

of herself.

32. Plaintiff’s 7-second March 17 social media post did not violate DMC’s social

media policy and her termination occurred at a time where Sinai Grace Hospital was in dire need

of experienced nurses (or any additional nurses) because of the influx of Covid-19 patients.

33. After her termination, the situation at Sinai-Grace Hospital continued to worsen

with increases in confirmed Covid-19 cases and related deaths.

34. Upon information and belief, on April 5, 2020, Sinai-Grace hospital administrators

ordered night-shift nurses to leave work after renewed and widespread nursing staff complaints

about the danger to employees and patients caused by the same things Plaintiff previously warned

about and threatened to report – inadequate staffing and PPE shortages – along with a demand by

1
Ley, Shawn, ‘It is Scary’: Metro Detroit Nurse Voices Concerns as She Cares for Coronavirus (Covid-19) Patients,
Local 4 Detroit WDIV (March 18, 2020), available at <https://www.clickondetroit.com/news/local/2020/03/18/it-is-
scary-metro-detroit-nurse-voices-concerns-as-she-cares-for-coronavirus-covid-19-patient/>, last viewed 4/14/2020.

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 nurses that more nurses be hired or brought in to help with the extraordinary number of Covid-19

patients, many of whom require long periods of intensive care and prolonged intubation.

35. On April 14, 2020 multiple state and national news media outlets reported on the

alarming number of dead bodies piling up and being stored in vacant hospital rooms and cold

storage.

36. The source for the photos depicting dead bodies piled on top of each other was

“emergency room staff at Sinai-Grace Hospital in Detroit[,]” and two emergency room workers

confirmed the photos were an accurate depiction of the conditions at the facility.2

37. The situation at Defendant DMC’s Sinai-Grace Hospital Detroit has become so dire

that, upon information and belief, the hospital misplaced the body of a 68-year old woman who

passed away in the facility on April 8, 2020 after battling coronavirus for more than three weeks,
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but Sinai Grace was not able to locate her body, which was one of many stored in vacant rooms,

until the night of April 14, 2020.

COUNT I – RETALIATION IN VIOLATION OF THE

WHISTLE BLOWERS PROTECTION ACT-,
M.C.L. § 15.361 et seq., AS TO DEFENDANT DMC

38. Plaintiff hereby restate and re-allege the allegations contained in paragraphs 1

through 37 above, as though fully set forth herein.

39. Michigan’s Whistle Blowers Protection Act, M.C.L. § 15.362, states than an

“employer shall not discharge, threaten, or otherwise discriminate against an employee regarding

the employee's compensation, terms, conditions, location, or privileges of employment because the

employee, or a person acting on behalf of the employee, reports or is about to report, verbally or in

2
See Young, Ryan, Photos Show Bodies Piled Up and Stored in Vacant Rooms at Detroit Hospital, CNN (April 14,
2020), available at <https://www.cnn.com/2020/04/13/health/detroit-hospital-bodies-coronavirus-trnd/index.html>,
last viewed 4/16/2020.

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 writing, a violation or a suspected violation of a law or regulation or rule promulgated pursuant to

law of this state, a political subdivision of this state…”

40. At times material and relevant, Plaintiff was an employee of Defendant DMC

covered by and within the meaning of the WPA, M.C.L. § 15.361(a).

41. As an employer within the meaning of the WPA, M.C.L. § 15.361(b), Defendant

owed Plaintiff a duty not to discharge/retaliate against her with respect to her employment,

promotional opportunities, compensation, or other conditions or privileges of employment on the

basis of reporting or being about to report violations of Michigan or other laws/standards

applicable to DMC’s operation of a medical facility.

42. Plaintiff engaged in statutory protected activity when she repeatedly told DMC

management—the individuals with the ability to ensure lawful compliance at Sanai Grace—that
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she would report the facility to MiOSHA, the State of Michigan Department of Licensing and

Regulatory Affairs (LARA), or the Joint Commission on Accreditation of Healthcare

Organizations (JCAHO) for violations of mandatory regulations required by State and Federal law

as it pertained to both patient and staff safety.

43. Pursuant to Michigan Administrative Code Rule 325.3825(1), “[a] facility shall be

planned, staffed, equipped, and operated with the individual patient’s welfare and safety to be of

paramount concern.”

44. Further, there are various other state and federal regulations enforced by the LARA

and MiOSHA intended to assure safe and healthy working conditions for workers and patients.

45. Likewise, pursuant to the Michigan Patient Bill of Rights, which has been

statutorily enumerated, a “patient or resident is entitled to receive adequate and appropriate care.”

M.C.L. § 333.20201(1)(e).

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 46. Plaintiff engaged in statutorily protected activity when she informed management

that she was going to report Defendant DMC’s Sinai-Grace Hospital for violations of both patient

and employee safety standards in violation of Michigan and federal law.

47. Defendant, by and through its agents, servants, and/or employees, subsequently

took adverse, retaliatory action against Plaintiff including, but not limited to, denying Plaintiff

conditions, terms, opportunities, and privileges provided to other employees of Defendant,

culminating in her baseless termination.

48. Plaintiff was subjected to this adverse action in violation of the WPA, M.C.L. §

15.362, due to her notifying DMC and Sinai Grace management personnel multiple times that she

was going to notify the State of Michigan or other regulatory agencies of the unlawful conduct

involving both employee and patient safety.

RASOR LAW FIRM, PLLC

49. Defendant’s contention that Plaintiff violated its social medica policy is baseless

and was pretext for Defendant’s retaliatory conduct to silence Plaintiff and, upon information and

belief, discourage other staff from reporting unlawful acts or code violations and from speaking to

the press.

50. Defendant and its agents, servants and/or employees’ actions were intentional, with

reckless indifference to Plaintiff’s rights and sensibilities.

51. As a direct and proximate result of Defendant’s unlawful actions and retaliations

against Plaintiff as described herein, Plaintiff has suffered injuries and damages, including, but not

limited to, potential loss of earnings, loss of career opportunities, loss of reputation and esteem in

the community, mental and emotional distress, loss of the ordinary pleasures of life and any other

damages permissible under the Whistleblowers’ Protection Act.

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 WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment against

Defendant in an amount in excess of $25,000.00, together with interest, costs, and attorney fees,

and grant further such relief as this Court deems fair and just under the circumstances.

COUNT II– MICHIGAN PUBLIC POLICY WRONGFUL

DISCHARGE CLAIM AGAINST DEFENDANT DMC

52. Plaintiff hereby reasserts and re-alleges each and every allegation contained in

paragraphs 1 through 51, as if fully set forth herein.

53. Pursuant to Michigan law pertaining to public policy exceptions to an employee’s

at-will employment status, an employer cannot discharge and/or take adverse employment

action(s) against an employee for the following reasons:

a. Where explicit legislative statements prohibit the discharge, discipline, or other

adverse treatment of employees; and/or
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b. Where the reason for the discharge was the employee’s exercise of a right
conferred by a well-established legislative enactment.

54. At all times material and relevant, Plaintiff was an employee and Defendant was

Plaintiff’s employer, and Plaintiff was an at-will employee.

55. MiOSHA and the Joint Commission on Accreditation of Healthcare Organization

(JCAHO) maintain non-retaliation provisions which prohibit adverse employment decisions based

on an employee’s good faith reporting of a concern about compliance with policy or legal

requirements, including but not limited to both employee and patient safety.

56. Defendant DMC terminated Plaintiff’s employment because of her honest, good-

faith complaints about DMC’s preparedness for and handling of the coronavirus epidemic and

violations of both patient and employee safety rules under both Michigan, federal, and other

regulatory rules applicable to Sanai-Grace Hospital Detroit.

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 57. Defendant’s actions in terminating Plaintiff’s employment were directly related to

her complaints of legal and regulatory violations.

58. As a direct and proximate result of Defendant’s unlawful actions against Plaintiff

as described herein and pursuant to Michigan’s public policy exception to at-will employment,

Plaintiff has suffered injuries and damages, including, but not limited to, potential loss of earnings,

loss of career opportunities, loss of reputation and esteem in the community, mental and emotional

distress, and loss of the ordinary pleasures of life.

59. Pursuant to the public policy wrongful discharge rule, Defendant is liable to

Plaintiff for all damages allowed under state law. To the extent that the damages allowable and/or

recoverable are deemed insufficient to fully compensate Plaintiff and/or to punish or deter

Defendant, this Court must order additional damages to be allowed so as to satisfy any and all
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such inadequacies.

WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment against

Defendant in an amount in excess of $25,000.00, together with interest, costs, and attorney fees,

and grant further such relief as this Court deems fair and just under the circumstances.

Respectfully submitted,

RASOR LAW FIRM, PLLC

/s/ Andrew J. Laurila ___

JAMES B. RASOR (P43476)
ANDREW J. LAURILA (P78880)
Attorneys for Plaintiff
201 East Fourth Street
Royal Oak, Michigan 48067
(248) 543-9000
Date: April 20, 2020 ajl@rasorlawfirm.com

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 STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE

KENISA BARKAI,

Plaintiff, Case No.: 20- -CD

Hon. _______________
v

VHS OF MICHIGAN, INC., d/b/a

DETROIT MEDICAL CENTER,

Defendant.

JAMES B. RASOR (P43476)

ANDREW J. LAURILA (P78880)
RASOR LAW FIRM, PLLC
Attorneys for Plaintiff
201 E. Fourth Street
RASOR LAW FIRM, PLLC

Royal Oak, MI 48067

248/543-9000 // 248/543-9050 fax
jbr@rasorlawfirm.com
ajl@rasorlawfirm.com
_____________________________________________________________________________/

DEMAND FOR JURY TRIAL

NOW COMES Plaintiff, KENISA BARKAI, by and through her attorneys, RASOR LAW

FIRM, PLLC, and hereby demands a trial by jury in the above-captioned cause of action.

Respectfully submitted:

RASOR LAW FIRM, PLLC

/s/ Andrew J. Laurila ______

JAMES B. RASOR (P43476)
ANDREW J. LAURILA (P78880)
Attorneys for Plaintiff
201 E. Fourth Street
Royal Oak, Michigan 48067-3846
(248) 544-9300/(248) 543-9050 Fax
Dated: April 20, 2020 ajl@rasorlawfirm.com

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