Horn v. U.S. Dep't of Health & Human Servs.

• Decision Date: 28 September 2021
• Docket Number: 4:16-CV-04172-RAL, 4:18-CV-04062-RAL
• Citation: 564 F.Supp.3d 834
• Parties: Kathleen F. HORN, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.
• Court: U.S. District Court — District of South Dakota

564 F.Supp.3d 834

Kathleen F. HORN, Plaintiff,

v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, Defendant.

4:16-CV-04172-RAL, 4:18-CV-04062-RAL

United States District Court, D. South Dakota, Southern Division.

Signed September 28, 2021

Kassie McKie Shiffermiller, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD, Stephanie E. Pochop, Johnson Pochop & Bartling Law Office, Gregory, SD, for Plaintiff.

Ellie J. Bailey, U.S. Attorney's Office, Pierre, SD, Delia M. Druley, U.S. Attorney's Office, Sioux Falls, SD, for Defendant.

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

ROBERTO A. LANGE, CHIEF JUDGE

Plaintiff Kathleen Horn ("Horn") filed two lawsuits against her former employer, the United States Department of Health and Human Services ("HHS"), alleging that HHS violated Title VII of the Civil Rights Act of 1964 by engaging in racial discrimination through disparate treatment, hostile work environment, retaliation, and constructive discharge. 4:16-CV-4172-RAL, Doc. 1; 4:18-CV-4062-RAL, Doc. 1.¹ This Court on a Joint Motion consolidated the cases into the first filed case of 16-CV-4172-RAL. Doc. 10. HHS filed a motion for summary judgment on all claims, Doc. 31, which Horn opposed, Doc. 40. For the reasons explained below, this Court grants HHS's motion for summary judgment on all claims.

I. Facts Not Subject to Dispute

Under Local Rule 56.1, HHS filed a Statement of Undisputed Material Facts, Doc. 32, accompanying its Motion for Summary Judgment. Doc. 31. Horn responded by filing Plaintiff's Response to Defendant's Statement of Undisputed Facts, Doc. 41, and Plaintiff's Additional Statement of Material Facts, Doc. 42. Defendant replied by filing Defendant's Response to Plaintiff's Statement of Additional Material Facts. Doc. 49. This Court takes the facts in the light most favorable to Horn as the non-moving party and draws the facts primarily from the undisputed portion of Defendants’ Statement of Undisputed Facts, Doc. 32; Plaintiff's Response to Defendant's Statement of Undisputed Material Facts, Doc. 41; and Plaintiff's Statement of Additional Material Facts, Doc. 42. The facts in this section are not subject to genuine dispute. This Opinion and Order also incorporates additional facts that Horn considers to be true, but which HHS contests, in discussing Horn's arguments.

Plaintiff Kathleen F. Horn, a registered nurse, is a white woman. Doc. 32 at ¶¶ 1–2. Horn worked for Indian Health Services ("IHS") at the Wagner Service Unit from 2005 to 2015. Doc. 32 at ¶ 2. IHS is an agency within HHS. In 2012 or 2013, Horn began working a second job at Yankton Medical Clinic and worked as a nurse there until 2015. Doc. 32. at ¶ 3. Prior to working at the Yankton Medical Clinic, Horn worked a second job outside the IHS system as a nurse for Sanford Mid-Dakota Hospital in Chamberlain, South Dakota, in 2011 and 2012. Doc. 42 at ¶ 1.

In March 2014, Roberta Ducheneaux-Sinclair, an enrolled member of the Lower Brule Sioux Tribe, became Assistant Director of Nursing at the IHS Wagner Service Unit. Doc. 32 at ¶¶ 4–5. Ducheneaux-Sinclair was Horn's first-line supervisor. Doc. 32 at ¶ 6. Susan Knudsen was the Director of Nursing at the IHS Wagner Service Unit. Doc. 32 at ¶ 7. Knudsen, who is Native American, was Horn's second-line supervisor. Doc. 32. at ¶¶ 7–8.

A. The Outside Activity Request

Shortly after Ducheneaux-Sinclair began working at the Wagner Service Unit, Knudsen informed her that two nurses, Horn and Lisa Miller, had additional employment outside their respective positions at IHS. Doc. 32 at ¶ 11. Horn worked part-time at the Yankton Medical Clinic, while Miller worked for the Yankton Sioux Tribe on archaeology activities. Doc. 32 at ¶ 11. Upon learning that Horn and Miller worked outside the IHS system, Ducheneaux-Sinclair sought clarification on whether HHS had approved the outside work activities. Doc. 32 at ¶¶ 12–13; Doc. 41. This led to an inquiry at the HHS Area Office as to whether Horn's outside activity request had been approved. Doc. 32 at ¶ 13. Upon learning that there was no approval request on file, Ducheneaux-Sinclair requested Horn complete an outside activity request as soon as possible and cease any outside activity until it was approved. Doc. 32 at ¶ 13.

Generally, IHS employees who seek outside employment must obtain approval in advance from IHS. Doc. 32 at ¶ 9. The approval process has three levels. Doc. 32 at ¶ 10. Initially, an employee submits an HHS-520 "Request for Approval of Outside Activity" form to their frontline supervisor, who makes a recommendation to either approve or deny the request. Doc. 32 at ¶ 10. The request is then evaluated by the second-line supervisor. Doc. 32 at ¶ 10. The request next goes to the Area Director for review and approval before going to IHS ethics staff. Doc. 32 at ¶ 10. If the ethics staff at IHS headquarters approves the request, it is returned to the employee as approved. Doc. 32 at ¶ 10. In 2011 and 2012, Horn had sought and obtained approval for her previous outside work at Sanford Mid-Dakota Hospital from Michael Homed Eagle, CEO of the Wagner Service Unit, and Ron Cornelius, Acting Area Director. Doc. 42 at ¶¶ 2–3. The record is silent on whether these requests were approved or disapproved by the IHS Ethics Office. Doc. 42 at ¶ 7.

At Ducheneaux-Sinclair's request, on March 14, 2014, Horn completed an HHS-520 request, seeking approval of her outside work at Yankton Medical Clinic. Doc. 32 at ¶¶ 13–14. In the section of the form labeled "Nature of Outside Activity," Horn explained that "I perform duties as a Registered Nurse in the clinic and hospital setting[.] I do surgical nursing[.] My position at Yankton Medical Clinic is a continuation of care for our IHS pts as I do there [sic] referrals and schedule them for surgery." Doc. 32 at ¶ 14. Susan Knudsen signed Horn's HHS-520 request, recommending approval on April 4, 2014. Doc. 32 at ¶ 15. On April 7, 2014, Michael Horned Eagle, the CEO of the Wagner Service Unit, signed Horn's HHS-520 request recommending Horn's outside activity request be approved. Doc. 32 at ¶ 16. On April 18, 2014, the Acting Area Director for the Great Plains Area IHS office, signed Horn's outside activity request recommending it for approval. Doc. 42 at ¶ 12.

Bennett Tuchawena, a Human Resources Specialist with IHS, handled outside activity requests for the area including the Wagner Service Unit. Doc. 32 at ¶ 23. His responsibilities included providing forms to employees, reviewing them once they were signed, forwarding the requests to the IHS Ethics Office, and serving as a point of contact to coordinate with the employee if the Ethics Office had any follow-up questions. Doc. 32 at ¶ 23. As part of his review of outside activity requests, Tuchawena reviewed information to ensure that the particular outside entity "is not [currently] receiving grants or has not received grants, contracts, purchase orders, or anything to do financially from either [IHS] or [HHS] in general." Doc. 42 at ¶ 10. Once the Ethics Office approved or disapproved a request, Tuchawena would draft a letter for the IHS Area Director to sign indicating whether the request was approved or denied. Doc. 32 at ¶ 23.

Tuchawena served as an intermediary between the IHS Ethics Office and Horn as they investigated her outside activity request. Doc. 32 at ¶¶ 24–29. When Tuchawena reviewed Horn's outside activities request, he did not find any financial conflicts with Yankton Medical Clinic except for prior purchase orders from 2009 to 2011. Doc. 42 at ¶ 11. After the Acting Area Director issued his preliminary approval of Horn's request, Tuchawena forwarded the request to IHS Ethics Coordinator Donald G. Lobeda, Jr. at the IHS Ethics Office. Doc. 42 at ¶¶ 12–13. In August 2014, Tuchawena relayed to Horn the IHS Ethics Office's request for clarification regarding whether Horn would be referring IHS patients for treatment at Yankton Medical Clinic. Doc. 42 at ¶ 14. Horn replied:

In clarification of the referral question[,] I myself do not refer [patients]. Referrals are entered into RPMS by the referring physician[’]s nurse as directed by the IHS provider's [sic]. I at times have contact with the patient at both facilities and this is just a continuation of care for the patient.

Doc. 42 at ¶ 14. Lobeda expressed concern that Horn would be treating an IHS patient in her role as a nurse at the Wagner Service Unit, and then the patient would be referred to Yankton Medical Clinic, which would be reimbursed with IHS funds for providing care. Doc. 42 at ¶ 15.

HHS attorney Kevin Rudolph then advised that Horn would need confirmation that Yankton Medical Clinic was not paying her from an HHS/IHS funding source. Doc. 42 at ¶ 16. Lobeda suggested obtaining a letter from Yankton Medical Clinic verifying that Horn's salary would not be paid from any HHS/IHS source. Doc. 42 at ¶ 16. This suggestion was forwarded to Tuchawena on September 10, 2014. Doc. 42 at ¶ 16. On September 10, 2014, Yankton Medical Clinic faxed a letter to IHS stating:

This letter serves as verification that Kathee [sic] F. Horn is paid by Yankton Medical Clinic, P.C., a private entity, for hours worked at Yankton Medical Clinic, P.C. No Yankton Medical Clinic, P.C., hours are paid with HHS/Indian Health Services funds.

Doc. 42 at ¶ 17.

Ultimately, Horn's outside activity request was denied on November 21, 2014. Doc. 32 at ¶ 17. In recommending the denial, Lobeda wrote:

Ms. Horn is a clinical nurse at the Wagner Indian [H]ealth Center in the Great Plains Area. She requests approval to work as a nurse at the Yankton Medical Clinic (YMC). Ms. Horn wishes approval to work 16 hours a week at the outside activity in addition to her full time IHS nursing duties ....

In Item 1 of page 2 on the HHS 520, Ms. Horn indicates that she will be involved in the continuation of care for IHS patients referred to YMC.

IHS employees may not receive additional income from outside sources for performing official duties.

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