Kaufman v. Rural Health Dev., Inc.

• Decision Date: 06 June 2019
• Docket Number: S-18-0234
• Citation: 442 P.3d 303
• Parties: Trent KAUFMAN, an individual, Appellant (Plaintiff), v. RURAL HEALTH DEVELOPMENT, INC., a Nebraska domestic corporation; and Shane Filipi, individually and as Regional Manager of Rural Health Development, Inc., Appellees (Defendants).
• Court: Wyoming Supreme Court

442 P.3d 303

Trent KAUFMAN, an individual, Appellant (Plaintiff),

v.RURAL HEALTH DEVELOPMENT, INC., a Nebraska domestic corporation; and Shane Filipi, individually and as Regional Manager of Rural Health Development, Inc., Appellees (Defendants).

S-18-0234

Supreme Court of Wyoming.

June 6, 2019

Representing Appellant: C. M. Aron and Brock L. Faulkner of Aron & Hennig, LLP, Laramie, Wyoming

Representing Appellees: Robert C. Jarosh of Hirst Applegate, LLP, Cheyenne, Wyoming

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

DAVIS, Chief Justice.

[¶1] Trent Kaufman appeals the district court’s grant of summary judgment to Rural Health Development (RHD) on his retaliatory discharge claim. He contends that genuine issues of fact precluded summary judgment and that his claim should proceed to trial. We affirm.

ISSUES

[¶2] Mr. Kaufman presents two issues on appeal, which he states as:

Issue 1: Whether the public policy exception to at-will employment applies to termination of an employee for submitting a report on elder abuse of a resident that was required by statute.

Issue 2: Whether the district court erred in making findings of a disputed material fact precluding summary judgment by accepting the employer’s pretext for termination, and finding termination "non-retaliatory" and the Kaufman report "deficient."

FACTS

[¶3] In January 2017, the Platte County Hospital Board of Trustees retained Rural Health Development, Inc. (RHD) to provide nursing home management services at the Platte County Legacy Home. Shane Filipi worked for RHD and served as the nursing home’s administrator until May 22, 2017, when RHD hired Trent Kaufman for that position. Mr. Filipi then became RHD’s western regional manager and Mr. Kaufman’s supervisor.

[¶4] On June 20, 2017, a resident of the nursing home reported to Mr. Kaufman that on June 9, 2017, a physical therapist working at the home threatened her with loss of Medicare benefits and removal from the home unless she agreed to undergo a physical therapy assessment and participate in physical therapy. Mr. Kaufman sent an email to Mr. Filipi describing the resident’s concern and asking, "How do you suggest I address the situation?" Mr. Filipi responded:

I’m pretty positive that [the resident] made comments pretty similar in one of her previous stays. I hope I’m thinking of the same resident. After digging into that situation there were two other staff members present that gave different stories than hers that both lined up and contradicted what she said and that she added a lot of drama to her story. I would find out what time this happened and see if there were other staff members around or other residents that are better historians and see what they have to say. Let me know what you find out.

[¶5] The director of nursing spoke with the resident’s attending nurse, who essentially confirmed the resident’s version of the June 9 incident. The director of nursing instructed the nurse to document the incident using a grievance form, and that was done. Based on this corroborating information, Mr. Filipi, Mr. Kaufman, and the director of nursing all agreed that the incident should be reported to the State as a potential incident of elder abuse. Mr. Filipi also discussed the incident with the vice president of operations for the physical therapist’s employer, and she likewise agreed the incident should be reported.¹

[¶6] Mr. Kaufman began work on the report, and while he was working on it, the director of nursing informed him that Mr. Filipi was on his way to the nursing home and wished to review the report before it was submitted. Mr. Kaufman submitted the report the afternoon of June 20, before Mr. Filipi had an opportunity to review it. The report included a copy of the attending nurse’s grievance form as well as cut-and-paste copies of emails exchanged between Mr. Kaufman, Mr. Filipi, and the director of nursing. In the report’s closing paragraphs, Mr. Kaufman stated, "It was the consensus of the regional manager, administrator, and director of nursing that this issue should be reported to the State of Wyoming as a potential abuse issue."

[¶7] When Mr. Filipi arrived at the nursing home on June 20, Mr. Kaufman informed him that he had submitted the report and provided him with a hard copy of it. Mr. Filipi was upset that Mr. Kaufman submitted the report without his review. He was also upset that Mr. Kaufman had included in the report the cut-and-paste emails exchanged between the two of them and the director of nursing, that he had not completed the investigation by interviewing the physical therapist before submitting the report, that he did not include a corrective action, and that the report was handwritten rather than typed. Mr. Filipi then told Mr. Kaufman that the two of them would work together to complete the investigation and submit a final report.

[¶8] On June 21 and 22, Mr. Kaufman was out of state for training. On the 22nd, Mr. Filipi was at the nursing home to take care of payroll and accounts payable in Mr. Kaufman’s absence. While he was there, several of the home’s department heads approached him with concerns about Mr. Kaufman’s management of the home. When Mr. Kaufman returned on the 23rd, Mr. Filipi met with him to discuss the concerns that had been brought to his attention, as well as his concerns regarding the submission of the abuse report. During this meeting, Mr. Kaufman asked if he should resign since the department heads had no faith in him. Mr. Filipi told him no, but that Mr. Kaufman needed to think about it.

[¶9] After Mr. Filipi left his office, Mr. Kaufman sent an email to the department heads, stating, "It has been a pleasure working with you all and I will miss working with you all. I am sorry that I did not meet your expectations." A few minutes later, he sent an email to Mr. Filipi that stated, "With a lack of support from the managers and your concerns I am considering this as a ‘termination.’ " He then left the building.

[¶10] On June 26, 2017, Mr. Filipi and the director of nursing submitted a final report to the State concerning the June 9, 2017 incident. The report was signed by both Mr. Filipi and the director of nursing, and it indicated that the resident’s physician and family had been notified and that the long term care ombudsman had been notified.² The report summarized the incident, and stated the nursing home’s assessment and proposed corrective action as follows (bold typeface in original):

Summary: On the afternoon of 6/9/17 [the resident] was admitted into the facility. [The physical therapist] came in to do an eval with [the resident]. [The resident] did not want to participate in therapy. [The attending nurse] was present in the resident’s room for part of the exchange. It is unclear whether [the physical therapist] told [the resident] that she would be kicked out/thrown out/discharged from facility/Medicare if she did not participate in therapy. Both [the resident] and [the physical therapist] apologized to each other the next day. [The resident] agreed to do an eval on the 12^th and has been participating in therapy since. [The resident] reported this incident to Administrator Kaufman on the 20^th. [The attending nurse] was asked on the 20th about the exchange that took place on the 9th and agreed to fill out a grievance. [The resident] was admitted directly from the ER on the 9th and was already anxious from a fall that took place at her home. [The resident] was sent back later in the night to hospital due to hypoxia

.

Administrative Decision based on evidence provided: [The physical therapist] should have taken a different approach and with [the resident’s] anxiety and health issues that evening it would have been in everybody’s best interests to come back the next day.

Corrective Action taken: [The physical therapist] has been assigned education that will be completed in the next 2 weeks that covers patients’ rights/resident rights, resident abuse, and diffusing customer complaints. [The physical therapist’s] supervisors will follow up to ensure proper resident interactions. [The attending nurse] will be educated

on timely reporting of resident grievances.

[¶11] On September 20, 2017, the State issued a Notice of Conclusions. The notice indicated that the State had completed its investigation and had found the allegation of abuse to be unsubstantiated.

[¶12] On September 25, 2017, Mr. Kaufman filed a complaint against RHD and Mr. Filipi, individually and as regional manager of RFD. The complaint asserted a claim for retaliatory constructive discharge, and in support alleged:

45. Filipi instructed Kaufman that no report of the elder abuse incident should be made.

46. Kaufman understood that Filipi was asking him to either disregard the resident’s complaint altogether, or to minimize it in any reports to the State agencies.

* * * *

67. Under federal and state legislation and regulation, elder abuse reporting is mandated, and serves and is an important and well established public policy to protect elderly and susceptible citizens.

68. Kaufman was given the choice to comply with the elder abuse reporting requirements under federal and state law, or to comply with Filipi’s instruction not to file an elder abuse report.

69. Kaufman reported to the Wyoming Department of Health and Wyoming Department of Family Services that a vulnerable adult was being or had been abused, neglected, exploited, intimidated, or abandoned.

70. After Kaufman made his report, RHD provided Kaufman with two options as to his employment, to be fired or to resign.

71. Kaufman reasonably believed his discharge was imminent.

72. Kaufman was not given any alternative to resignation.

73. Kaufman understood the only choice he had was to resign, so as to avoid an involuntary termination report on his employment record.

74. Kaufman was not provided any time to make the resignation decision that Filipi required him to make.

75. Kaufman was not permitted to select the effective date of his

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