Marla B. Whittington VS Hospice Care Services of Louisiana, L.L.C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 0206 MARLA B WHITTINGTON VERSUS HOSPICE CARE SERVICES OF LOUISIANA L C Judgment Rendered September 10 2010 On Appeal from the 19th Judicial District Court In and For the Parish of East Baton Rouge Trial Court No C559169 Division I Section 24 Honorable R Michael Caldwell Judge Presiding Donna U Grodner Baton Rouge LA Counsel for PlaintiffAppellant Marla B Whittington Caroline E Hemphill Counsel for Defendant Appellee Winnsboro LA Hospice Care Services of Louisiana L C BEFORE PARRO GUIDRY AND HUGHES JJ HUGHES J This is an appeal of the grant of a partial summary judgment in favor of Hospice Care Services of Louisiana L Hospice Care and against C Marla Whittington dismissing Ms Whittington claims of recovery s pursuant to the Louisiana Whistleblower Statute For the following reasons we reverse and remand FACTS AND PROCEDURAL HISTORY Ms Whittington was employed by Hospice Care a Department of Public Health and Hospitals DHH licensed hospice as its Administrator Pursuant to her duties as Administrator she was instructed to hire a new Director of Nursing DON Ms Pamela Alexander was recommended by Dr Richard Rathbone Hospice Care Medical Director and was s interviewed for the position on August 1 2007 Both Ms Whittington and Mr Richard Mahoney Hospice Care President conducted the interview s Upon its conclusion Ms Whittington did not feel that Ms Alexander possessed the requisite one year of fulltime experience in providing direct patient care in a hospice home health or oncology setting Nevertheless Mr Mahoney offered Ms Alexander the position Ms Alexander accepted the position and began working for Hospice Care on August 20 2007 DHH requires that a Key Change Personnel Form be sent to it regarding the change of the DON Because Ms Whittington believed that Ms Alexander was unqualified for the position she refused to sign the form Ms Alexander faxed the form to DHH without a signature Ms Whittington claimed that when DHH inquired as to the lack of a signature she was forced to sign the form by Mr Mahoney 1 The Whistleblower Statute LSAR 23 provides protection to employees against reprisal S 967 from employers for reporting or refusing to participate in illegal workplace practices 2 On September 4 2007 Ms Alexander attempted to resign by submitting to Ms Whittington a letter of resignation indicating that her reason for leaving was due to her inability to work with Ms Whittington As a result Mr Mahoney called a meeting attended by Dr Rathbone Ms Whittington and Ms Alexander wherein he advised that he would not accept Ms Alexander letter of resignation s Still unconvinced of Ms Alexander qualifications Ms Whittington s began contacting Ms Alexander previous employers in an effort to s independently verify the employment history given by Ms Alexander During those efforts Ms Whittington was advised by Lane Regional Medical Center Lane Regional that Ms Alexander was still employed with them on a PRN as needed basis but had not actually worked since August 19 2007 the day before she began work at Hospice Care In addition to the requirement that a DON have one year of fulltime experience in providing direct patient care in a hospice home health or oncology setting DHH regulations also mandate that a DON not be simultaneously or concurrently employed by any other licensed health care agency Ms Whittington phoned Mr Mahoney to inform him of Ms Alexander ineligibility Ms s Whittington alleged that at that time she was fired from Hospice Care Ms Whittington filed suit against Hospice Care alleging damages for her termination including a cause of action pursuant to the Whistleblower Statute Ms Whittington claimed that she was fired because she exposed Hospice Care violation the hiring of an unqualified DON to DHH s Hospice Care contended that because DHH eventually determined that Ms Alexander was a qualified DON it had committed no violation and Ms s Whittington whistleblower claim should be dismissed via summary judgment The trial court granted Hospice Care partial motion for s 3 summary judgment and dismissed Ms Whittington claim under the s Whistleblower Statute This appeal followed LAW AND DISCUSSION 1 Summary Judgment The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSA C art 969 the procedure is favored and shall be P construed to accomplish these ends LSAC art 966 Summary P C 2 A judgment shall be rendered if and only if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law See LSAC art P C B 966 Appellate courts review summary judgments de novo under the same criteria that govern the district court consideration of whether summary s judgment is appropriate Allen v State ex rel Ernest N Morial New Orleans Exhibition Hall Authority 2002 1072 p 5 La 4 842 03 9 2d So 373 377 Schroeder v Board of Supervisors of Louisiana State University 591 So 342 345 La 1991 2d In ruling on a motion for summary judgment the judge role is not to evaluate the weight of the s evidence or to determine the truth of the matter but instead to determine whether there is a genuine issue of triable fact All doubts should be resolved in the non moving party favor Hines v Garrett 20040806 p 1 s La 6 876 So 764 765 04 25 2d 2 An order granting the summary judgment and dismissing Ms Whittington whistleblower s claim was signed on November 10 2009 and was designated as a final judgment with no just reason for delay for puposes of appeal by separate order signed November 23 2009 2 A fact is material if it potentially insures or precludes recovery affects a litigant ultimate success or determines the outcome of the legal dispute s A genuine issue is one as to which reasonable persons could disagree if reasonable persons could reach only one conclusion there is no need for trial on that issue and only then is summary judgment appropriate Id at 765 66 Pursuant to LSAC art 966 the burden of proof remains P C 2 C with the movant However if the moving party will not bear the burden of proof on the issue at trial and points out that there is an absence of factual support for one or more elements essential to the adverse party claim s action or defense then the non moving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial Only if the non moving party fails to do so is there no genuine issue of material fact so that summary judgment should be granted See Cressionnie v Intrepid Inc 20031714 p 3 La App 1 Cir 5 04 14 879 So 736 738 2d Under this court decision in Accardo v Louisiana Health Services s Indem Co 2005 2377 La App 1 Cir 6 943 So 381 to 06 21 2d prevail in a whistleblower action an employee must show both that the employer committed an actual violation of law and that the disclosure of that violation caused his or her termination Accardo 943 So at 386 2d Therefore in this case Ms Whittington must produce evidence to show that 1 Ms Alexander did not meet DHH regulatory standards and therefore Hospice Care committed a violation in hiring her and 2 Ms Whittington was fired because she reported that violation to DHH At the hearing on the motion for summary judgment the issues regarding whether Hospice Care knew that Ms Whittington had reported the violation to DHH and whether Ms Whittington was fired as a result of that disclosure were not argued and we will not address those issues in this appeal 5 2 DHH Regulations The requirements for a DON as set forth by DHH in LAC 48 8217 I are as follows E Director of Nurses DON A person designated in writing by the Governing Body to supervise all aspects of patient care all activities of professional staff and allied health personnel and responsible for compliance with regulatory requirements The DON or alternate shall be immediately available to be on site or on site at all times during operating hours and additionally as needed If the DON is unavailable heshe shall designate a Registered Nurse to be responsible during his her absence 1 Qualifications A registered nurse must be currently licensed to practice in the State of Louisiana a with at least three years experience as a registered nurse One of these years shall consist of fulltime experience in providing direct patient care in a hospice home health or oncology setting and b be a fulltime salaried employee of only the hospice agency The Director of Nurses is prohibited from simultaneousconcurrent employment While employed by the hospice he or she may not be employed by any other licensed health care agency Ms Whittington alleged that Ms Alexander was not eligible to hold the DON position for two reasons 1 she remained simultaneouslyconcurrently employed with Lane Regional after she took the position with Hospice Care and 2 she failed to prove that she had the requisite one year of fulltime experience in providing direct patient care in either a hospice home health or oncology setting A SimultaneousConcurrent Employment A review of the record reveals the following evidence offered in support of the position that Ms Alexander violated DHH prohibition s against simultaneous concurrent employment Cl 1 A letter from Susan Pearson of Lane Regional Medical Center stating that while Ms Alexander status was changed from s fulltime to part as needed on 8 Ms Alexander time 2007 19 was employed at Lane Regional from 9 until 1998 21 2008 04 6 2 A Form LDOL 77 which reads that Ms Alexander separation s date from Lane Regional was 06 2008 04 3 A letter dated September 7 2007 from Susan Pearson of Lane Regional Medical Center to Hospice Care stating that Ms Alexander is currently employed as a PRN registered nurse for the intensive care unit 4 An affidavit by Susan Pearson verifying the contents of her September 7 2007 letter 5 An affidavit executed by Marla Whittington attesting to the fact that on September 7 2007 she spoke with a Lane Regional representative who advised that Ms Alexander was still employed at Lane Regional 6 A July 29 2009 letter from DHH attorney stating that it s appears that Ms Tate and the Department are saying the simultaneousconcurrent regulation cannot be enforced when an employee of a hospice agency chooses to work at another licensed healthcare facility while not on duty or not on call with the hospice agency The lower court reasoned that s t i a question of law Was there a violation of law must the law is very well settled that the court give great weight to an s agency interpretation of its own rules and regulations And what we talking about here is an alleged re violation of DHH rules and regulations Not a statute that appears in the revised statutes in the State of Louisiana but rules and regulations promulgated by DHH DHH interpretation of s its rules is that there is no violation of law Were this here on appeal from an administrative decision to that effect it would my standard of review would be whether there was an abuse of discretion or a clear misapplication of the law I t don see either one Emphasis added It appears that the trial court ruling was based on its determination s that it had a duty to defer to an agency decision that the July 29 2009 letter drafted by counsel for DHH amounted to an agency decision and that the 7 agency decision was that no violation had occurred However this is not an appeal of an administrative decision Under the Whistleblower Statute an employee may commence a civil action in a district court where the violation occurred As such the district court had original jurisdiction over the claim and owed no deference to the purported administrative decision Moreover we disagree with the district court conclusion that DHH s s ultimate determination that Ms Alexander was eligible to hold the DON position based on the letter of DHH attorney was evidence that DHH had s interpreted its regulations to find no violation had been committed After a de novo review we find that the evidence in the record does not establish that such an interpretation was made by DHH In fact DHH s representative Marion Tate arguably admitted that a violation had occurred Q You would agree and it is true that Pamela Alexander was employed as PRN at Lane Regional Medical Center and as the director of nurses for Hospice Care Services of Louisiana LLC at the same time concurrently is that true A I would have to look at the dates but I would think that is true A Your question is based on the knowledge that we have today whether or not today I would say she was qualified Q Yes ma am A No she was not qualified 1442 Deposition of DHH through its representative Marion Tate RN According to the evidence DHH only determination was that the s rule allegedly violated by Ms Alexander could not be enforced it appears that Ms Tate and the Department are saying the simultaneousconcurrent regulation cannot be enforced when an employee of a hospice agency 0 chooses to work at another licensed healthcare facility while not on duty or not on call with the hospice agency Thus only because DHH chose not to enforce the prohibition against concurrent employment was Ms Alexander considered qualified Enforceability of the rule however is not the issue The issue is whether or not a violation of that rule occurred We find that the record contains ample evidence to meet the burden of establishing that a violation indeed occurred Moreover we find that whether Ms s Whittington termination was a result of her disclosure of that violation is yet another question of fact to be resolved at a trial on the merits This matter was not properly disposed of via summary judgment B Work Experience Because we have determined that this matter should be remanded we pretermit discussion regarding Ms Alexander work experience s CONCLUSION The judgment granting the partial motion for summary judgment filed by Hospice Care is reversed and this matter is remanded for further proceedings consistent with this opinion Costs of this appeal are assessed against defendant Hospice Care of Louisiana L appellant C REVERSED AND REMANDED Z
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