Mahony v. Universal Pediatric Serv. Inc.

• Decision Date: 14 January 2010
• Docket Number: No. 4:08–cv–00343–JEG.,4:08–cv–00343–JEG.
• Citation: 753 F.Supp.2d 839
• Parties: Julie MAHONY, Plaintiff,v.UNIVERSAL PEDIATRIC SERVICES, INC.; Ultimate Nursing Services of Iowa, Inc.; S. Tucker Anderson; and Connie Freeman, Defendants.
• Court: U.S. District Court — Southern District of Iowa

753 F.Supp.2d 839

Julie MAHONY, Plaintiff,

v.UNIVERSAL PEDIATRIC SERVICES, INC.; Ultimate Nursing Services of Iowa, Inc.; S. Tucker Anderson; and Connie Freeman, Defendants.

No. 4:08–cv–00343–JEG.

United States District Court, S.D. Iowa, Central Division.

Jan. 14, 2010.

Paige Ellen Fiedler, Sara Rae Laughlin, Brooke C. Timmer, Fiedler Law Firm PLC, Urbandale, IA, for Plaintiff.Kelsey J. Knowles, Michael R. Reck, Belin McCormick, P.C., Des Moines, IA, for Defendants.

ORDER

JAMES E. GRITZNER, District Judge.

Before the Court is Defendants' Motion for Summary Judgment in the above-captioned action. Plaintiff resists the motion. Also before the Court is Plaintiff's Motion to Strike. Defendant resists the motion. The matter came on for hearing on November 20, 2009. Paige Fiedler represented Plaintiff Julie Mahony (Mahony); Michael Reck and Kelsey Knowles represented Defendants Universal Pediatric Services, Inc. (UPSI), and Ultimate Nursing Services of Iowa, Inc. (UNSI) ¹, Tucker Anderson (Anderson), and Connie Freeman (Freeman) (collectively, UPSI or Defendants). These matters are fully submitted and ready for disposition.

I. SUMMARY OF MATERIAL FACTS ²

Mahony was hired by UPSI as its vice president of nursing to assume responsibility for regulatory and licensing compliance. UPSI provided its employees with an employee handbook that outlined UPSI's policies and procedures. One of Mahony's responsibilities was making sure that UPSI was Medicare certified in order to be reimbursed by Medicaid for home health care services.

In 2008, UPSI decided to open an office in Sheldon, Iowa, with the intention of opening by June 1, 2008. New home health care offices need to be Medicare certified by filling out Form CMS–855A in order to be reimbursed by Medicaid. Branch offices may register with Medicare by submitting a completed questionnaire.

At a meeting on Thursday, June 5, 2008, Mahony told Anderson, who is president and CEO of UPSI, “[w]e cannot do this,” referring to opening the Sheldon office, because a CMS–855A had not yet been completed. Defs.' App. 13. During the meeting, Anderson insisted that Mahony was responsible for regulatory compliance and blamed Mahony for not completing the necessary forms. Both Mahony and Anderson became upset at this meeting. After the meeting, Mahony left work and did not return to her office until Monday, June, 9, 2008.

At about 8:20 a.m. on June 9, 2008, Mahony filed a grievance with UPSI's Human Resources Manager Ashley Wirtjes (Wirtjes) against UPSI for opening the Sheldon office. Mahony also included allegations of harassment and discrimination in her grievance. Anderson went to Mahony's office at about 9:45 a.m., complaining about Mahony's insistence that the opening of the Sheldon office be delayed and calling into question her continued employment with UPSI.

UPSI hired attorney Deb Tharnish to assist in the grievance investigation. UPSI issued a written decision regarding Mahony's grievance on June 10, 2008. UPSI concluded that the Sheldon office would not be opened until certification was in place and that, although the June 5 meeting was tense, there was no discrimination or harassment. The decision also included the statement, “As discussed during the investigation process and as part of company policy, retaliation will not be accepted.” Defs.' App. 45. On June 13, 2008, attorney Gordon Fischer sent Mahony a letter that terminated her employment with UPSI.

On August 18, 2008, Mahony commenced this lawsuit in the Iowa District Court for Polk County, claiming that her termination violated public policy, constituted retaliation under the Federal False Claims Act (FCA), and was unlawful under principles of promissory estoppel. Defendants timely removed the case to this Court. Defendants filed a motion for summary judgment on all counts on July 15, 2009. Mahony filed a motion to strike on August 25, 2009, arguing that portions of Defendants' summary judgment appendix should be stricken because Defendants violated discovery procedures. After extension of time and completion of pleadings and briefing on the pending motions, the matters were fully submitted by September 21, 2009.

II. DISCUSSIONA. Motion to Strike ³

Mahony moves to strike three pages of employee relations files from UPSI's supplemental summary judgment appendix, specifically pages four to six containing Wirtjes' notes. Mahony asserts that UPSI produced these documents after the discovery deadline and failed to identify the documents when they were produced. Mahony also argues that the documents are not admissible under Federal Rule of Evidence 803(6). UPSI responds that no basis exists to strike the documents, the documents have in fact been produced in the manner Mahony requested, and the alleged irrelevance of the documents does not support a motion to strike.

The Court entered a scheduling order and discovery plan on October 6, 2008, setting a discovery deadline of June 1, 2009. The Court specifically ordered that “[d]iscovery shall be concluded, and not propounded, by June 1, 2009.” Sched. Order & Disc. Plan ¶ 6 (emphasis added). On May 26, 2009, Mahony served a written discovery request on UPSI, under the mistaken impression that the discovery deadline was July 1, 2009. Mahony, realizing her mistake, moved for an extension of the discovery deadline, which this Court granted in part. Mahony was allowed to take four depositions by July 15, 2009, and UPSI was ordered to respond to Mahony's May 26 written discovery.

Mahony deposed Wirtjes on July 8, 2009. UPSI produced the documents in question on July 20, 2009, as a supplement to its initial June 29, 2009, response to the May 26 written discovery. UPSI referenced Wirtjes notes in its reply to Plaintiff's resistance to summary judgment for the purpose of disputing the facts set forth by Mahony in her resistance to summary judgment brief.

The Court's June 18, 2009, order granting Mahony's request to extend the discovery deadline did not impose a deadline upon UPSI to respond to Mahony's May 26 written discovery. The July 15, 2009, deadline applied only to depositions; thus, Mahony's assertion that Wirtjes' notes should be stricken because UPSI produced the notes after the July 15 deadline is without basis. Furthermore, the Court does not consider the thirty-two day interval between an order to respond to written discovery and production of documents worthy of sanction under these circumstances.

Additionally, the remedy that Mahony seeks for this discovery dispute is inappropriate. Local Rule 37(a) requires that motions relating to discovery include a declaration (1) that counsel has personally conferred with the opposing party in an attempt to resolve the issues; (2) that the lawyers are unable to agree; and (3) as to the nature of the discovery. Mahony has not filed the required declaration, and the Court is unable to determine the extent to which the parties have attempted to resolve this issue without the Court's intervention. Local Rule 37 reflects this Court's policy to become involved in discovery disputes only as a last resort. This motion to strike would effectively circumvent that policy.

Federal Rule of Civil Procedure 37(b) provides for specific sanctions when a party fails to comply with a discovery order. When a party fails to disclose information in response to written discovery, Rule 37(c) provides for substantially all of the same sanctions allowed by Rule 37(b).

A party must disobey a discovery order before sanctions may be imposed, which UPSI has not done. However, even if UPSI had disobeyed the scheduling order, Mahony seeks to strike documents from an appendix, a remedy not provided for in the rules.⁴ While the list of remedies provided by Rule 37 is not exhaustive, the Court is guided by principles of justice. Fed.R.Civ.P. 37(b)(2)(A) (“If a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders.”) No injustice has occurred in this case. Mahony's error regarding the original June 1, 2009, deadline created the situation that compressed discovery, and UPSI has produced the requested documents. Mahony implies that UPSI strategically withheld Wirtjes' notes until after Wirtjes was deposed. Following this rationale, Mahony asks the Court to first read into this Court's order granting Mahony an extension of time a deadline that was not imposed, and then to attribute improper conduct to UPSI for failure to comply with that fictional deadline. This the Court cannot do.

B. Summary Judgment Standard

Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party.” Miner v. Local 373, 513 F.3d 854, 860 (8th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). On a motion for summary judgment, the Court views the evidence and inferences in the light most favorable to the nonmovant. Id. The nonmovant “must set forth specific facts sufficient to raise a genuine issue for trial” and “may not rest upon mere denials or allegations in the pleadings.” Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Wells Fargo Fin. Leasing, Inc. v. LMT Fette, Inc., 382 F.3d 852, 856 (8th Cir.2004). As Mahony argues, it is common to recognize, albeit in the context of discrimination cases, that because employment actions are uniquely fact based, summary judgment should seldom be...