Pedersen v. Bio-Medical Applications Minnesota
| Decision Date | 06 January 2015 |
| Docket Number | No. 14–1284.,14–1284. |
| Citation | 775 F.3d 1049 |
| Parties | Lisa PEDERSEN, Plaintiff–Appellant v. BIO–MEDICAL APPLICATIONS OF MINNESOTA, doing business as Fresenius Medical Care, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Karin Ciano, argued, Minneapolis, MN (Clayton Dean Halunen, Kaarin S. Nelson, on the brief), for Appellant.
Marko Joseph Mrkonich, argued, Minneapolis, MN (Rhiannon Camille Beckendorf, on the brief), for Appellee.
Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
Lisa Pedersen sued Bio–Medical Applications of Minnesota (BMA) under the Minnesota Whistleblower Act (MWA), Minnesota Statute § 181.932, alleging BMA took adverse employment actions against her after she reported the mishandling of blood samples and a cover-up by management. The district court 1 granted Bio–Medical's motion for summary judgment, concluding Pedersen failed to establish a prima facie case under the MWA. Pedersen appeals, and we affirm.
Pedersen began working for BMA, which operates dialysis clinics throughout Minnesota for individuals suffering from end stage renal disease, in 2007. After becoming a registered nurse, Pedersen could assess patients, work with physicians, and administer medication to patients. BMA does not employ its own team of physicians but contracts with physician groups for patient services at its clinics.
Part of BMA's treatment regimen for its patients involves monitoring certain components of patients' blood, which is assessed by drawing and analyzing blood samples from patients, and then administering medications based on the results. BMA draws patients' blood at their facilities and then sends the samples to an independent laboratory, Spectra Laboratories, Inc. (Spectra), for analysis. Spectra provides shipping instructions for the blood samples, including the size of box to use and the number of ice packages to include to keep the blood samples below a certain temperature. On the morning of April 12, 2012, when Pedersen reported to work, she learned a box of blood samples had been left in the clinic's front lobby overnight, packed with ice packages but in the wrong type of shipping box. Another employee, a patient care technician, had discovered the blood samples prior to Pedersen arriving at the clinic, touched the vials to ensure the samples were still cool, repackaged them in the correct package, and sent them to Spectra.
Because the blood samples had been incorrectly packaged, Pedersen believed the samples may have been compromised. After Spectra processed the samples and returned the results to BMA, however, a registered nurse reviewed the results and determined none of the samples were abnormal. This nurse reported the results to Joelle Ince, the clinic manager, who was responsible for day-to-day operations of the clinic. Ince learned the blood samples had been packaged incorrectly the previous day when she spoke with the patient care technician who originally discovered the blood samples. Pedersen did not make a report about the blood samples to Ince. When Ince became aware of the incident, she notified her area manager, Celestine Kienzle, who had broad oversight responsibilities with respect to staffing issues at the clinics. Kienzle directed Ince to call the laboratory and schedule educational sessions for employees about proper packaging.
On the morning of April 17, 2012, Ince met with Pedersen to discuss concerns Ince had about Pedersen's aggression and some performance issues, including Pedersen failing to “close out the day” on April 12, 2012, leaving one patient without a post-weight assessment; Pedersen entering Ince's office agitated and pointing her finger at Ince, saying with an aggressive posture Ince needed to talk with other staff; Pedersen failing to “sign off” on three medications when another nurse took over for Pedersen; and Pedersen failing to complete patient care plans. Ince informed Pedersen she would be transferred to a separate clinic with a more experienced staff. Pedersen became very upset after hearing this information and yelled at Ince, suggesting she call her area manager.
Later that day, Ince and Pedersen had a meeting with one of BMA's contract nephrologists to discuss patient care planning. While discussing laboratory results, Pedersen informed the nephrologist about the blood samples left in the lobby overnight. Ince then informed the nephrologist a registered nurse at BMA reviewed the results of the blood samples and did not find any abnormalities. According to Pedersen, Ince told Pedersen not to discuss the incident with the nephrologist. After hearing the information, the nephrologist did not order a redraw of any patients who had incorrectly packaged blood samples.
Following the patient care planning meeting, Pedersen contacted Kienzle to report the incident about the blood samples. Kienzle assured Pedersen they would investigate the incident and if any blood samples needed to be redrawn, then BMA would do so. Pedersen indicated to Kienzle she believed the physicians and the medical director should be notified of the incident. Kienzle responded Pedersen should not tell the physicians about the incident because they would take care of the employee issues at the clinic.
Pedersen also reported the incident to several others, including a customer service representative at Spectra; BMA's employee line; Kelly Tarlton, a BMA regional vice president; and Martha D'Sanchez, a BMA employee relations manager. During these conversations, Pedersen reported not only the incident, but also that she feared retaliation from management as a result of exposing questionable staff practices and a cover-up by management. Both Tarlton and D'Sanchez contacted Kienzle about Pedersen's report. Kienzle informed them they had investigated the incident and none of the blood samples were affected. Pedersen believes the laboratory results were used to administer patient medications without first informing the patients of the incorrectly packaged blood samples.
On April 19, 2012, a patient reported to a patient care technician, who in turn reported to Kienzle, Pedersen had slapped her arm during her previous two treatments. BMA also received complaints Pedersen had impersonated Jennifer Bard, a clinic manager, on April 2, 2012, and on April 18, 2012; she inappropriately documented a patient's treatment and failed to notify the physician as required; and she failed to obtain proper doctor's orders for the treatment of a patient. As BMA investigated these performance issues, Pedersen went on medical leave from April 19, 2012, until May 28, 2012. While Pedersen was on leave, Kienzle asked Bard numerous times if there was a way to “get rid of” Pedersen and suggested a number of reasons she could use to justify Pedersen's discharge. On May 29, 2012, Kienzle and Bard met with Pedersen to discuss her performance and their concerns. Pedersen offered explanations for all of the occurrences, but Kienzle suspendedPedersen for three days pending further investigation.
Following BMA's investigation, BMA determined Pedersen could return to work under a corrective action plan, which included requiring Pedersen to refrain from misrepresenting herself, to exhibit respectful and professional behavior, and to appropriately document all actions with patients, obtain orders as required, and communicate with physicians. Pedersen, however, did not return to work. By the end of June 2012, BMA continued to offer Pedersen employment but as a patient care technician rather than a registered nurse due to Pedersen's length of absence and the issuance of new nursing policies and procedures during the absence. Bard indicated to Pedersen, however, she would be retrained to her registered nurse position. Pedersen continued to refuse to return to work unless certain conditions were met by BMA. BMA refused the requests, and after several months of additional discord and Pedersen not returning to work, Tarlton informed Pedersen on September 4, 2012, BMA was terminating Pedersen's employment because it considered her failure to return to work as a voluntary resignation of her employment.
Pedersen then filed suit against BMA in Minnesota state district court, alleging BMA retaliated against her in violation of the MWA for reporting the mishandling of the blood samples and the cover-up of the incident by management. BMA removed the suit to federal court and thereafter filed a motion for summary judgment. The district court granted summary judgment to BMA, finding Pedersen failed to show she engaged in statutorily-protected activity. Pedersen appeals.
“We review a district court's grant of summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences that can be drawn from the record.” Johnson v. Wells Fargo Bank, N.A., 744 F.3d 539, 541 (8th Cir.2014) (internal quotation marks and citation omitted). Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party bears the burden of establishing a lack of genuine issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the nonmoving party “may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A mere scintilla of evidence is insufficient to defeat summary judgment and if a nonmoving party who has the burden of persuasion at trial does not present sufficient evidence as to any element of the cause of action, then summary judgment is appropriate.” Brunsting v. Lutsen Mountains Corp., 601 F.3d 813, 820 (8th Cir.2010) (internal quotation marks and...
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