Simpson v. Total Renal Care, Inc.
| Decision Date | 21 September 2022 |
| Docket Number | 1:20-cv-12077 |
| Parties | VIKKI SIMPSON, Plaintiff, v. TOTAL RENAL CARE, INC. d/b/a TOWN CENTER DIALYSIS, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
While employed at Defendant Town Center Dialysis, Plaintiff Vikki Simpson maintained a contentious relationship with her direct supervisor and was disciplined seven times in two years. Then, after two more violations of company policy in August 2019, Defendant terminated her employment.
Plaintiff however, alleges Defendant fired her for engaging in protected activities: refusing to violate the law and to refusing to conceal illegal conduct. Thus, she claims Defendant's termination of her employment violated Michigan's public-policy exception to at-will employment a common-law cause of action.
The questions presented are whether Plaintiff engaged in a protected activity and whether any such protected activity was the reason that Defendant terminated her employment.
Defendant, a subsidiary of DaVita, Inc., provides medical care to patients with chronic kidney failure and renal disease. ECF Nos. 6 at PageID.59; 22-2 at PageID.151. In July 2017, Plaintiff began working as a charge nurse at Defendant's clinic in Saginaw, Michigan, where she was responsible for patient safety and oversight of patient-care technicians. ECF Nos. 22-4 at PageID.188, 191; 22-26 at PageID.413. Her direct supervisor was Facility Administrator Catina Chandler.[1] ECF No. 22-4 at PageID.188.
Before Defendant terminated Plaintiff's employment, she was disciplined seven times for her performance, as earlier noted. She received one verbal warning,[2] two “Initial Written Warnings,”[3] and four coaching sessions.[4] Eleven months after the last reprimand, Defendant terminated Plaintiff's employment. See ECF No. 32-16 at PageID.1083-84.
Plaintiff argues she repeatedly refused to violate and to conceal violations of Michigan law during her employment. Plaintiff claims she refused to violate Michigan law when she refused (1) to provide medication to sedate a patient chemically, (2) to accept “physician orders” given by Chandler, who was not a licensed nurse, and (3) to change patients' weights in medical records. ECF No. 32 at PageID.939-40. Plaintiff also asserts she refused to conceal illegal conduct when (1) she filed an incident report after a patient threatened to kill her, and (2) filed an incident report regarding a coworker's alleged improper use of prescription drugs. Id. But Plaintiff does not provide timing details or proof for any of those events. See id.
Plaintiff alleges her final refusal to conceal illegal conduct occurred on August 14, 2019, when she told Chandler that they needed to shut down the dialysis clinic after patients complained of cramping and discomfort. See ECF Nos. 22-4 at PageID.198-99; 22-17 at PageID.350; 22-5 at PageID.269-71; 32-2 at PageID.999. Plaintiff then spent several hours trying to determine and troubleshoot the issue that was causing patient complaints, with no success. ECF No. 22-4 at PageID.201, 203-04. Finally, around 1:00 PM, a doctor shut down the dialysis clinic. ECF Nos. 22-4 at PageID.203, 205; 22-5 at PageID.270-71. After the clinic shut down, Defendant investigated the incident and determined that the cause of the patients' complaints were an improperly calibrated machine and diluted bicarbonate that a patient-care technician improperly mixed under Plaintiff's supervision. ECF Nos. 22-17 at PageID.350; 22-21 at PageID.381; 22-22 at PageID.393-96; 22-23 at PageID.398-401. Defendant alleges Plaintiff was never asked to conceal a violation of the law, but that Plaintiff's actions that day contributed to the issue causing patient complaints and violated company policy and procedure. ECF No. 22-4 at PageID.207-208; ECF No. 22-17 at PageID.354; ECF No. 22-25 at PageID.410.
Five days later, Plaintiff was disciplined, again, because she failed to notify a physician of a patient's elevated blood pressure. ECF Nos. 22-17 at PageID. 347; 22-21 at PageID.383; 22-23 at PageID.401. In response, Plaintiff testified that she “knew nothing about” the incident, which merely demonstrates Defendant “padding [the] file against me to terminate me.” ECF No. 32-2 at PageID.991.
On August 27, 2019, Defendant terminated Plaintiff's employment, citing her two August 2019 violations of company policy.[5] ECF No. 22-25 at PageID.410.
Plaintiff initiated her case in Saginaw County Circuit Court in June 2020 alleging the termination of her employment violated Michigan public policy. ECF No. 1-1 at PageID.14. Defendant removed the case to this Court based on diversity jurisdiction. ECF No. 1.
In July 2021, Defendant filed a motion for summary judgment, ECF No. 22, which has been fully briefed, ECF Nos. 29; 32; 37. Defendant contends it terminated Plaintiff's employment for violating company policies and procedures on August 14, 2019 and August 19, 2019. ECF Nos. 22-4 at PageID.207-208; 22-17 at PageID.354; 22-25 at PageID.410. Plaintiff contends that Defendant's rationale is pretextual.[6] ECF No. 23-2 at PageID.990.
As explained hereafter, Defendant's Motion for Summary Judgment will be granted.
A motion for summary judgment should be granted if the “movant shows that 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 has the initial burden of identifying where to look in the record for evidence “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
The burden then shifts to the opposing party who must set out specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (citation omitted). That is, the party opposing a motion for summary judgment must make an affirmative showing with proper evidence and must “designate specific facts in affidavits, depositions, or other factual material showing ‘evidence on which the jury could reasonably find for the plaintiff.'” Brown v. Scott, 329 F.Supp.2d 905, 910 (6th Cir. 2004). Mere allegations or denials in the nonmovant's pleadings will not satisfy this burden, nor will a mere scintilla of evidence supporting the nonmoving party. Anderson, 477 U.S. at 248, 251.
The evidence is to be considered carefully and all reasonable inferences are to be drawn in favor of the nonmovant to determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the movant is entitled to summary judgment. Celotex, 477 U.S. at 323.
Michigan recognizes a cause of action for violating Michigan public policy. See generally Patricia Nemeth & Deborah Brouwer, Employment and Labor Law, 59 Wayne L. Rev. 951, 953-72 (2014). Violations of public policy include retaliation both for refusing to conceal illegal conduct and for refusing to violate the law.
Defendant makes three arguments in its motion for summary judgment: (1) Plaintiff cannot establish that she engaged in a protected activity,[7] ECF No. 22 at PageID.135; (2) even if Plaintiff demonstrated a protected activity, there would be no causal connection to the adverse employment action, id. at PageID.140; and (3) Defendant terminated Plaintiff's employment for “legitimate, non-retaliatory reasons,” which Plaintiff cannot prove was pretext, id. at PageID.142-43.
As protected activities, Plaintiff asserts she refused to violate the law and to conceal violations of the law. ECF No. 1-1 at PageID.19. Although Plaintiff's Complaint exclusively focuses on the August 14, 2019 incident, see ECF No. 1-1, she identified five more instances during which she allegedly refused to violate or to conceal a violation of the law, see ECF No. 32.
The three alleged refusals to conceal will be discussed infra Section III.A, and the three alleged refusals to violate will be discussed infra Section III.B.
A refusal to conceal a violation of the law constitutes a protected activity under Michigan's framework for retaliation in violation of public policy. Rivera v. SVRC Indus., No. 341516, 2021 WL 4047033, at *4 (Mich. Ct. App. Sept. 2, 2021) ().
A refusal to conceal a violation of the law constitutes a protected activity if the plaintiff demonstrates that the defendant (1) instructed the plaintiff not to disclose illegal conduct, and (2) conditioned the plaintiff's employment on an agreement not to disclose the conduct. Id.
Plaintiff first contends she engaged in a protected activity because she filed an incident report about a patient who threatened to kill her, which Plaintiff alleges is an assault. ECF No. 32 at PageID.940.
But Plaintiff has not alleged that Defendant asked her to conceal the threat. Rather, as Plaintiff testified, Chandler consoled the patient and “did not ask if [Plaintiff] was okay she did not call the police, she did not make a report, she did nothing.” ECF No. 22-4 at PageID.250 (emphasis added). Granted, after Plaintiff filed the report, Chandler was “visibly angry.” Id. But Chandler's preference that Plainti...
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