Domen v. National Rehabilitation Hosp., Inc.

• Citation: 925 F. Supp. 830
• Decision Date: 29 April 1996
• Docket Number: Civil Action No. 95-02143.
• Parties: Cheryl A. DOMEN, Plaintiff, v. NATIONAL REHABILITATION HOSPITAL, INC., Defendant.
• Court: U.S. District Court — District of Columbia

925 F. Supp. 830

Cheryl A. DOMEN, Plaintiff, v. NATIONAL REHABILITATION HOSPITAL, INC., Defendant.

Civil Action No. 95-02143.

United States District Court, District of Columbia.

April 29, 1996.

COPYRIGHT MATERIAL OMITTED

Douglas Taylor, for Plaintiff.

Gregory M. Murad, Silver Spring, MD, for Defendant.

OPINION

ATTRIDGE, United States Magistrate Judge.

The plaintiff, Cheryl A. Domen (plaintiff or Domen), a registered nurse formerly employed by the defendant National Rehabilitation Hospital, Inc. (defendant or NRH) seeks monetary damages and reinstatement for wrongful termination by NRH. Before the Court is the defendant's motion to dismiss and/or for summary judgment. Pursuant to 28 U.S.C. § 636(c), the parties have consented to proceed before a United States Magistrate Judge for all purposes, including entry of judgment. Upon consideration of the motion, the opposition, replies and the entire record, the Court concludes that the defendant's motion for summary judgment should be granted.

I. FINDINGS OF FACT

Domen began her employment with NRH as a certified rehabilitation registered nurse on June 15, 1987. Compl. at ¶ 3, 7, 10. On March 31, 1992, an incident occurred concerning patient M.E. causing Domen to make entries in the nursing progress notes portion of M.E.'s hospital chart. Compl. at ¶ 20, 21, 24. Christine Babicki (Babicki), NRH's Clinical Service Director and Domen's supervisor wrote a note to Domen on September 3, 1992, in which she expressed her disapproval of the contents of Domen's progress note regarding M.E. and admonished Domen to cease "(e)ditorializing" in the nursing progress notes. Compl. at ¶ 26.

Several months later, on December 13, 1992, Domen again wrote comments in the nursing progress notes portion of the patient's medical chart about the treatment patient CN was receiving. Compl. at ¶ 39. On December 21, Babicki issued a written warning to Domen stating in part: "(Y)ou have been counseled in the past ... regarding your subjective method of documentation in patient's medical records ... You are entitled to your professional opinion; however, it was inappropriate for you to write this (personal comment) in the patient's medical record." Compl. at ¶ 50; Motion to Dismiss at Exh. 9. Domen responded in writing that Babicki's comments to her were "most inappropriate and offensive" and requested a rescission. Compl. at ¶ 53, Motion to Dismiss at Exh. 10. In reply, Babicki refused to rescind her warning and again ordered Domen not to document her personal views in the patient's chart. She admonished Domen to "discuss (her personal views regarding patient treatment) with the appropriate team members" but not in the patient's medical record. Compl. at ¶ 54, Motion to Dismiss at Exh. 11.

On April 4, 1993, yet another incident arose. This time regarding entries made in the chart of patient LB. In response to this incident, Babicki telephoned Domen at home concerning what she perceived was Domen's "inappropriate subjective statements" in LB's medical chart. Compl. at ¶ 57, 58; Motion to Dismiss at Exh. 12. During the telephone conversation, Babicki directed Domen to schedule a class in documentation the next day and upon completion of the class, to stop by to see her. Compl. at ¶ 59. It was during this telephone conversation that Babicki terminated Domen's employment. Compl. at ¶ 53. By letter of even date, Babicki notified Domen that she was discharged "for recent violation of the documentation policy, and insubordination ... during our phone conversation today". Compl. at ¶ 68.

The plaintiff, in her two count complaint, alleges that the defendant breached its contract of employment with her in violation of the defendant's policies of "Fair Treatment," "Progressive Discipline" and "Separation of Employment." Compl. Count II. She also contends that her employment discharge arose because of her compliance with the District of Columbia Municipal Regulations for Public Health and Medicine (DCMR). Consequently, her discharge was wrongful and in violation of public policy. Compl. Count I.

II. ANALYSIS

(a) Legal Standards

Both sides have attached affidavits and exhibits to the motion to dismiss or in the alternative for summary judgment and the opposition. Accordingly, pursuant to Fed. 12(C), the motion will be considered one for summary judgment and decided according to summary judgment criteria.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994) (internal citations omitted). See also Fed.R.Civ.P. 56. The moving party has the burden of showing there is no genuine issue of material fact, and once that burden has been sustained, the opposing party must come forward with specific evidence creating a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine issue does not arise unless the evidence viewed in a light most favorable to the nonmoving party would allow a finder of fact to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "Material" facts are facts in dispute that "might affect the outcome of the suit under the governing law." Whether a fact is material is determined by substantive law. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

(b) Employee At Will Doctrine

The plaintiff's alternate theories of liability shall be discussed in reverse order from that presented in her complaint. Domen contends that she was a permanent employee subject to discharge only "for cause" with the benefit of certain contractual rights; whereas, the defendant argues that she was an at-will employee subject to discharge for any or no reason provided the discharge was not for an unlawful reason.

The plaintiff alleges that certain written employment policies of the defendant, viz., Fair Treatment (Policy # 740.07). Opp. at attachment 3; Progressive Discipline (Policy # 740.14). Motion at Exh. 4; and Separation of Employment (Policy # 740.13). Motion at Exh. 5¹ vest her with certain substantive protections from involuntary discharge; that she relied on these policies to her detriment; and, therefore, a contract of employment arose with NRH which elevated her to the status of a permanent employee with contractual rights. She further argues that NRH breached its contract with her by disciplining and ultimately discharging her. Opp. at 22, 23.

The defendant contends that Domen was an at-will employee and that the hospital policy statements did not establish an employment contract nor rights separate and apart from those set out in the Hospital Employee Handbook which specifically stated:

The contents of the Handbook are for general information, and its provisions are not conditions of employment. This Handbook is not intended to create, nor should it be construed to constitute an employment agreement between NRH and any of its employers. In all circumstances, employment is at will and may be terminated at any time for any reason, except as limited by federal and state law, and without any regard to cause.

Consequently, NRH argues, it incurred no legal liability to Domen by discharging her. Mot. at 12, 13.

The District of Columbia has long adhered to the employment at-will doctrine. Under that doctrine employment may be terminated for any reason or no reason at the will of either party in the absence of an express or implied contract concerning the duration of employment. Rafferty v. Nynex Corp., 60 F.3d 844, 850 (D.C.Cir.1995); Choate v. TRW, Inc., 14 F.3d 74, 76 (D.C.Cir. 1994) (citation omitted); Elliott v. Healthcare Corp., 629 A.2d 6, 8 (D.C.1993).

In order to successfully oppose a properly presented motion for summary judgment, "the employee must present evidence of a `clearly expressed' contractual intent on the part of both the employer and the employee." Choate, 14 F.3d at 76.

The plaintiff contends that the parties indeed intended to create an employment of "permanent" nature as evidenced by the "Separation of Employment" policy and, as such, she could only be terminated "for cause." Compl. at ¶ 93, 94. But, an analysis of that policy statement undercuts rather than supports the argument for permanent employment. Unlike the policy statement found in Washington Welfare Ass'n. Inc. v. Wheeler, 496 A.2d 613, 615 (D.C.App.1985), relied on by Domen, which specifically provided that "a permanent employee may only be terminated for good cause so long as the project to which he is assigned remains funded." The policy statement at issue specifically recognized

that all employees are not always suited to their position and some may be incapable of or unwilling to adhere to the stated job requirements and the required standards. NRH recognizes that there will be times when the organization will wish to terminate the employment relationship.

This appears to speak in terms of unilateral action by NRH. It puts the employee on notice that certain conduct is considered unacceptable behavior, including repeated disciplinary actions and that that conduct, as well as other specifically listed conduct, may result, at the option of the employer, in termination.

The mere listing in a policy statement of causes that may result in discharge does not create a "for cause" contract of life time employment. Such an interpretation of the policy statement would be unreasonable. Otherwise, every employee of NRH would be considered a life time employee. This conclusion is especially true when the Employment Handbook itself not only summarizes the policies relied on by the plaintiff but also specifically negates any intention to create an employment agreement. "In all circumstances, employment is at will and may be terminated at any time for any reason except as limited by federal and state law, and without regard to cause." Mot. at Exh....