Salters v. American Family Health Care Inc, No. 5:2010cv02843 - Document 107 (N.D. Ala. 2016)
Court Description: MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/15/2016. (PSM)
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Salters v. American Family Health Care Inc Doc. 107 FILED 2016 Dec-15 PM 01:04 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION UNITED STATES OF AMERICA, ex rel . ANITA C. SALTERS, Plaint if f, vs. AMERICAN FAMILY CARE, INC., Defendant . ) ) ) ) ) ) ) ) ) 5: 10-cv-2843-LSC MEMORANDUM OF OPINION I. Introduction Plaint if f/ Relat or Anit a C. Salt ers (“ Relat or” ) filed t his act ion against her former employer American Family Care (“ AFC” ) alleging t hat AFC violat ed t he False Claims Act (“ FCA” ), 31 U.S.C. § 3729, by submit t ing false claims t o t he government , and t hat it engaged in physician referrals in violat ion of t he St ark Law, 42 U.S.C. § 1395nn. She furt her alleges t hat she was unlawfully t erminat ed in ret aliat ion for report ing t hese pot ent ial violat ions t o her superiors cont rary t o t he FCA’ s ant i-ret aliat ion provision. 31 U.S.C. § 3730(h). Bef ore t he Court is defendant AFC’ s mot ion for part ial summary j udgment (Doc. 92), which has been fully briefed and is Page 1 of 25 Dockets.Justia.com ripe for review. For t he reasons set out below, AFC’ s mot ion is due t o be denied. II. Background A. Relator’s Management Style AFC, a medical care provider, hired Relat or as an audit supervisor in January 2007 and promot ed her t o direct or of t he Claims Processing Cent er (“ CPC” ) in December 2007. (Salt ers Dep. at 14, Kerr Dep. at 103. ) Wit h t his promot ion, she received a $10, 000 raise and report ed direct ly t o Joseph Hawley (“ Hawley” ), AFC’ s Chief Financial Officer. (Salt ers Dep. at 146. ) Her dut ies as direct or of t he CPC included: ensuring t hat t he claims submit t ed were in compliance wit h all applicable regulat ions, collect ing all sums due t o AFC wit hin a reasonable period of t ime, and supervising approximat ely t went y-five ot her employees in t he CPC. (Salt ers Dep. at 190, Johansen Dep. at 37 & 72, Hawley Dec. ¶ 5. ) Three subordinat e supervisors report ed direct ly t o Relat or: Donna Crocker (“ Crocker” ), Valencia McAdory Pickens (“ Pickens” ), and Pat ricia Allen (“ Allen” ). (Salt ers Dep. at 128. ). Before July 2010, Relat or had only one disciplinary memorandum in her file and it was unrelat ed t o t his case. (Kerr Dep. at 116. ) Relat or was paid quart erly bonuses in 2008 and 2009 but not in 2010. (Hawley Dec. ¶ Page 2 of 25 4.) However, according t o AFC’ s Direct or of Human Resources James Kerr (“ Kerr” ), in February 2010 he creat ed a Word document list ing concerns about Relat or’ s management st yle which he developed from “ informal conversat ions wit h employees wit hin CPC” and his own observat ions. (Kerr Dep. at 48-56.) Kerr furt her claims t hat he shared t his document wit h Hawley aft er creat ing it . The document included concerns about ot her employees “ becom[ing] t arget s for ret aliat ion,” requiring coworkers t o “ do her bidding” by making her cof fee and get t ing her lunch, bad workload dist ribut ion, inaccurat e communicat ions, unprofessional behavior like playing f avorit es and int ercept ing emails, inappropriat e dress and speech, hypocrisy and lack of credibilit y, punishing ot hers for infract ions t hat she commit t ed herself , and capriciousness about working hours. (Pl. Ex. 48.) The document , however, only bears a handwrit t en dat e, t hough Kerr claims t hat t he dat e of creat ion is available in it s nat ive format and t hat t he met adat a will show t hat it was creat ed in February 2010. 1 (Kerr Dep. 49-53.) 1 Neither party has provided any evidence of this metadata. Relator does not dispute the dates of these documents directly, but does claim that she did not have meetings about her conduct until after May 2010, and also alleges that AFC fabricated a history of disciplinary problems in order to terminate her with impunity after she engaged in protected activity. Page 3 of 25 AFC also support s Relat or’ s alleged management problems t hrough deposit ions and declarat ions of t hose she supervised. For example, Crocker and Pickens claim t hat Relat or punished her st af f for breaking rules but t hen broke t hem herself wit h impunit y. (Crocker Dec. ¶ 6, Pickens Dec. ¶ 12. ) St af f members Erica Jackson and Evelyn Roper echoed t hese complaint s and also st at e t hat Relat or required her st aff t o work t en t o t hirt een hour days but t hen t ook long vacat ions and was oft en absent . (Jackson Dec. ¶ 10, Roper Dec. ¶ 9. ) Tara Walt on Person repeat ed t he same complaint s, and also st at ed t hat Relat or did not allow personal emails, but t hen circulat ed her own non-work emails. (Person Dec. ¶ 8.) According t o Allen, she forbade personal conversat ions but t hen had lengt hy non-work conversat ions wit h employees in her of fice, “ made rude, unprofessional and f alse comment s about [Allen] t o [Allen’ s] subordinat es,” and “ t reat [ed] employees in a manner t hat was complet ely uncalled for and wit hout regard for professional decorum. ” (Allen Dec. ¶ 5 & 12.) Pickens describes how Relat or would make one of t he oldest CPC employees get lunch for her every day. (Pickens Dec. ¶ 6.) Furt her, Relat or does not disput e t hat she t old Pickens, who is African-American, t o “ kiss her whit e ass. ” (Pickens Dep. at 125, Doc. 96 at 12. ) According t o Page 4 of 25 Pickens, t his comment was made t wice, and bot h t imes it was said in front of co-workers. (Id. at 124-28. ) However, Pickens also admit s t hat she never report ed t his comment , and laughed it off at t he moment because “ if [Pickens] had went t o t he ot her way, it wouldn’ t have been good.” (Id. at 127-28. ) According t o various employees, Relat or was a liar and “ a micromanager [who] did not t rain, encourage or empower” t hem and “ left employees wit h confused expect at ions and t he work environment unpredict able. ” (Allen Dec. ¶ 6, Howard Dec. ¶ 6, Person Dec. ¶ 6, Pickens Dec. ¶ 5, Roper Dec. ¶ 7.) These employees also st at ed t hat t hey did not complain or report t hese incident s of misconduct because Relat or “ engaged in t hreat s, int imidat ion and ret aliat ion . . . [and] sa[id] t hat if she was ‘ going down’ (get t ing fired) t hat we would go down wit h her.” (Howard Dec. ¶ 5 & 6, Jackson Dec. ¶ 5, Nelson Dec. ¶ 5 & 8, Allen Dec. ¶ 8, Pickens Dep. at 125-128.) Ot her employees averred t hat fears of ret aliat ion were “ real, as [t hey] wit nessed [Relat or] ret aliat e against ot her employees for what would be considered minor slight s.” (Crocker Dec. ¶ 7, Woodfin Dec. ¶ 6, Howard Dec. ¶ 7, Jackson Dec. ¶ 8. ) Six employees assert t hat Relat or’ s management problems were “ a cause of great st ress and a problem for t he ent ire depart ment .” (Allen Page 5 of 25 Dec. ¶ 5, Crocker Dec. ¶ 4, Howard Dec. ¶ 4, Jackson Dec. ¶ 4, Nelson Dec. ¶ 4, Pickens Dec. ¶ 4. ) One employee complained t hat she “ felt like [she] was t ort ured by” Relat or, who would “ harass [her], writ e [her] up wit hout cause . . . [ and] announce[] in front of [her] and ot hers t hat she was going t o fire [her] .” (Jackson Dec. ¶ 8.) Anot her claimed t hat she “ believe[ d] she was falsely accusing [her] of t hings in order t o build a fict it ious personnel record t o j ust ify t erminat ing” her. (Howard Dec. ¶ 7.) A supervisor professed t hat Relat or’ s “ unprofessional manner . . . made [t hem] and ot her employees uncomfort able. ” (Crocker Dec. ¶ 5.) Some st aff members also cont end t hat t he sit uat ion impact ed t heir healt h. (Howard Dec. ¶ 11, Jackson Dec. ¶ 11, West wood Dep. at 81-82. ) As discussed furt her hereinaft er, Relat or engaged in prot ect ed act ivit y by report ing alleged St ark Law violat ions in March 2010. On May 11, 2010, Hawley met wit h Relat or, and t he meet ing agenda list ed “ management st yle” among ot her discussion t opics. (Pl. Ex. 75. ) Kerr claims t hat in May 2010, he was st ill receiving unsolicit ed complaint s from CPC employees about Relat or, which he recorded in anot her Word document . (Kerr Dep. at 67.) Once again, t his document only has a handwrit t en dat e, but Kerr claims t hat t he dat e can be est ablished from Page 6 of 25 t he met adat a. 2 (Id. at 67-68, Pl. Ex. 51.) The complaint s in t his list are consist ent wit h t hose in t he earlier Word document , but are purport edly from different employees, namely Sylvia Cook, Robin Johnson, and Hope Harman. (Pl. Ex. 51.) Relat or t ook a vacat ion in early June 2010. Hawley and Kerr claim t hat Kerr gave Hawley a memo about t he problems wit h Relat or around June 11, 2010. (Hawley Dec. ¶ 9, Kerr Dep. at 118-121.) The memo ident ified t he problems discussed above, and offered Relat or cont inued employment wit h AFC if she t ook a demot ion and improved her performance. (Pl. Ex. 64). This memo was addressed t o Relat or, and Kerr suggest ed t hat Hawley deliver it t o her, but Hawley rej ect ed t his suggest ion because he “ want ed t o sit down wit h her and t alk about t he issues ident ified. ” (Id., Hawley Dec. ¶ 9, Hawley Dep. at 91.) However, Hawley claims t hat he did not meet wit h Relat or immediat ely because of “ pressing business mat t ers and vacat ion schedules. ” (Hawley Dec. ¶ 12. ) Kerr also claims t hat AFC conduct ed an “ employee engagement survey, ” which “ af forded [employees] an opport unit y t o comment about t heir manager.” (Kerr Dep. at 125-26. ) Relat or admit s t hat she knew about and part icipat ed in t he survey. (Salt ers Dep. at 153-54. ) This survey was 2 See supra n.1. Page 7 of 25 online and anonymous, and, according t o Kerr, unrelat ed t o t he problems AFC was having wit h Relat or. (Id. at 125-28.) In t his survey, CPC employees complained of Relat or’ s favorit ism, inconsist ent rules, bad morale, lack of confident ialit y, micromanagement , lack of responsibilit y, ret aliat ion and unprofessionalism. (Pl. Ex. 65.) Aft er t his survey was complet ed, AFC claims t hat Jackson called AFC owner Bruce Irwin (“ Irwin” ) t o complain about Relat or. (Kerr Dep. at 73-74, Hawley Dep. at 97, Jackson Dec. ¶ 13.) Apparent ly as a result of t his call, Kerr, Hawley, and Chief Operat ing Officer Randy Johansen (“ Johansen” ) conduct ed an invest igat ion by int erviewing t hree women who worked in dif ferent posit ions under Relat or. (Hawley Dep. at 97, Pl. Ex. 52 & 63.) The result of t hese int erviews paralleled t he exist ing complaint s about Relat or. (Pl. Ex. 52.) Hawley also assert s, and Kerr’ s memo st at es, t hat none of t he int erviewees had anyt hing posit ive t o say about Relat or. (Hawley Dep. at 97-98, Pl. Ex. 63.) Relat or admit s t hat she met wit h Kerr and Hawley about t he result s of t hese int erviews in lat e June 2010, and was t old t hat her employees didn’ t t rust her and were unhappy wit h her management st yle. (Salt ers Dep. at 153-54, Pl. Ex. 63.) According t o Relat or, Hawley and Kerr t old her “ t o figure out if [ she] t hought [she] could correct t he damage t hat had been done and t o t alk t o Page 8 of 25 some of [her] coworkers t o see if t hey could make suggest ions.” (Salt ers Dep. at 155.) Relat or was t old at t he lat e June meet ing t hat AFC had not made a final decision about her employment st at us, but she was warned t hat she could be t erminat ed. (Pl. Ex. 63.) Hawley assert s t hat Relat or was t old not t o discipline or ret aliat e against any of her employees bef ore management made a final decision. (Id., Hawley Dec. ¶ 16.) According t o Hawley, he was concerned t hat AFC would get sued because Relat or had creat ed a host ile work environment . (Hawley Dep. at 93-94, Hawley Dec. ¶ 16.) Relat or also admit s t hat she spoke t o some of her st aff aft er her meet ing wit h Hawley and Kerr, and t hat t hey said “ t hat t hey felt like [she] had micromanaged and [she] wasn’ t giving t hem a chance t o make suggest ions and correct ions. ” (Id.) They also t old Relat or t hat t hey did not t rust her, and t hat t hey felt like she did not list en t o t hem. (Id. at 157-58.) Relat or alleges t hat t hat one employee t old her t hat she “ she knew t hat [Relat or] didn’ t mean t o hurt anybody. ” (Salt ers Dep. at 159. ) Some of t he employees she spoke t o, however, allege t hat Relat or t ried t o “ get informat ion from [her] as t o who may have complained.” (Woodfin Dec. ¶ 8, Allen Dec. ¶ 14.) A t erminat ion memo creat ed on July Page 9 of 25 2, 2010 and placed in Salt er’ s employment folder cont ends t hat t wo employees complained t hat Relat or had crit icized and at t empt ed t o ret aliat e against t hose who she t hought might have report ed her t o management . (Pl. Ex. 63.) The Memo set s out t hat based on t his behavior, Kerr informed Hawley t hat “ t he sit uat ion was not salvageable and t hat [Relat or] should be t erminat ed. ” (Id.) Hawley t hen made t he decision t o t erminat e Relat or, purport edly because “ of t he way she t reat ed her subordinat es . . . her loss of respect and t rust . . . her failure t o delegat e work and t rain . . . and because she at t empt ed t o find out who had complained.” (Hawley Dec. ¶ 18. ) However, Irwin and Johansen also were involved in t his decision. (Kerr Dep. at 114.) Relat or was t hen t erminat ed by Kerr and Hawley on June 30, 2010. (Salt ers Dep. at 14 & 161.) Relat or insist s t hat AFC did not follow t he proper procedures for discipline and t erminat ion as set f ort h in t he Employee Handbook. (Pl. Ex. 95.) The Handbook provides for progressive discipline, including a writ t en warning f or a first offense, suspension for anot her of fense, and t erminat ion for a t hird of fense. (Id. at 15.) Yet , t he Handbook also st at es t hat “ [ t ]here may be circumst ances when one or more st eps are bypassed or repeat ed. ” (Id. at 14.) Relat or point s out t hat Pickens was disciplined Page 10 of 25 while working at AFC t hrough “ employee counseling” and a writ t en warning. (Pl. Ex. 97) A record of t his discipline was placed in Pickens’ s file, along wit h her response t o t he warning3. (Id.) Pickens also t est ified t hat she received anot her warning for t ardiness. (Pickens Dep. at 102-03. ) Relat or also avers t hat Hawley never conduct ed an annual review of her work, which was required by t he Employee Handbook, and t hat such reviews were regularly conduct ed wit h Pickens. (Pl. Ex. 95 at 36.) While Pickens’ s file cont ained records of t hese annual reviews, Relat or’ s had none. Relat or’ s file also cont ained only one unrelat ed record of misconduct , and cont ained evidence of a promot ion and t hree raises. (Pl. Ex. 60.) There was no evidence of complaint s about Relat or’ s behavior in her file unt il af t er she engaged in t he prot ect ed act ivit y. (Id.) Even aft er her t erminat ion, t he only document s in her file t hat list t hese supposed complaint s are dat ed July 2, 2010. 4 Relat or also professes t hat she never met wit h Hawley or Kerr t o discuss her j ob performance unt il lat e June, 3 The document presented is unclear, but appears to address concerns that Pickens was disorganized and was not properly completing her duties (e.g. receipts were not being written, copays were not being collected). 4 Relator’s file contains the following disciplinary documents: an unrelated memorandum dated March 7, 2008, a termination memorandum by Hawley dated July 2, 2010, a termination memorandum by Kerr dated July 2, 2010, and a report titled March Meeting by Hawley dated July 2, 2010. (Pl. Ex. 60.) Page 11 of 25 and was unaware t hat any problems exist ed before t hat meet ing. (Salt ers Dec. at 151-53.) B. Allegations of Improper Billing Throughout her t enure at AFC, Relat or repeat edly brought issues wit h t he company’ s billing pract ices t o her supervisor’ s at t ent ion. 5 (Salt ers Dep. at 67, 189, 191-94, 200-01. ) For example, in 2007 Relat or emailed Birmingham Clinical Direct or Kay Park (“ Park” ), raising a problem wit h billing for follow-up visit s t hat should have been included in global surgery and lacerat ion periods. (Pl. Ex. 107 & 108. ) Relat or claims t hat Hawley had inst ruct ed her t o cont act Park if she had any quest ions. (Salt ers Dep. at 194. ) Also in 2007, Relat or purport edly scheduled an appoint ment wit h Irwin to discuss a supposed lack of proper document at ion by doct ors. (Salt ers Dep. at 25-26.) She st at es t hat when she raised t hese concerns, Irwin was “ st ern” and t old her t hat doct ors were responsible for t heir own document at ion, and t hat billing would be done “ his way.” (Salt ers Dep. at 25-29.) Relat or also avers t hat in 2008, when one of AFC’ s doct ors lost his privileges for upcoding, Irwin made her re-audit chart s t hat Blue Cross Blue Shield had audit ed and asked her t o come up wit h a conclusion t hat 5 A separate summary judgment motion will be filed as to the fraud and improper billing claims in this case. Therefore, they will not be addressed in this opinion. Page 12 of 25 differed from Blue Cross Blue Shield’ s. (Salt ers Dep. 20-30. ) When Relat or reached t he same result as Blue Cross Blue Shield, Relat or report s t hat Irwin “ curse[d] [her] and was very blat ant ly ugly t o [her]. ” (Salt ers Dep. 30.) Relat or also allegedly report ed concerns t o Park about billing for ult rasounds in t he Vest avia clinic and sent an email t o her supervisors expressing concern t hat AFC had improperly billed for aft er-hours visit s t hat t ook place during it s normal business hours. (Pl. Ex. 26 & 114. ) According t o Relat or, t he issue was t hen correct ed and AFC st opped t his billing pract ice. (Salt ers Dep. at 189). Relat or purport edly spoke t o Johansen, Hawley and Irwin when she t hought t hat AFC was improperly billing for administ rat ion and inj ect ion codes and t his pract ice was correct ed aft er t he report . (Salt ers Dep. at 199-201). In March 2010, Relat or also expressed concern t hat unbundling was slowing down t he speed of processing payment s. (Salt ers Dep. at 59-60. ) However, Relat or alleges t hat t he prot ect ed act ivit y in t his case was a complaint she made regarding pot ent ial St ark Law violat ions. She met wit h Johansen, Park, and Hawley in March 2010 t o voice her concerns t hat paying Dr. McCoy for lab referrals t o AFC violat ed t he St ark Law. Johansen t old her t hat he would t ake a look at t his purport ed violat ion aft er she sent him some furt her informat ion. (Salt ers Dep. at 53, Page 13 of 25 Johansen Dep. at 242-43). On May 18, 2010, Relat or sent an e-mail t o Chief Operat ing Officer Tom Lazenby, Johansen, Park, and Hawley wit h a det ailed explanat ion of why she t hought t he St ark Law had been violat ed and at t ached a copy of t he st at ut e t o her e-mail. (Salt ers Dep. at 54-55, Johansen Dep. at 242, Pl. Ex. 18. ) Relat or claims t hat no one responded t o her concern about t he violat ion. (Salt ers Dep. at 65.) However, Johansen claims t hat he did speak t o Relat or about t he problems she raised in her email. (Johansen Dep. at 244-45.) Johansen also t est ified t hat he discussed t he issue wit h Hawley, and t hat t hey came t o t he conclusion t hat t here was no improper billing occurring. (Id. at 246-47. ) Furt her, Kerr says he had no knowledge of t he alleged prot ect ed act ivit y when he recommended t hat Relat or be t erminat ed in lat e June 2010, six weeks aft er t he e-mail was sent . (Kerr Dep. at 75-6.) Yet , it is undisput ed t hat Hawley, who made t he final decision t o t erminat e Relat or, was aware of t he prot ect ed act ivit y when he made t hat decision. (Kerr Dep. at 78, Pl. Ex. 18. ) Relat or was t erminat ed on June 30, 2010 and filed t his act ion on Oct ober 20, 2010. C. Standard of Review Summary j udgment is appropriat e “ if t he movant shows t hat t here is no genuine disput e as t o any mat erial fact and t he movant is ent it led t o Page 14 of 25 j udgment as a mat t er of law. ” Fed. R. Civ. P. 56(a). A mat erial fact is one t hat “ might af fect t he out come of t he case.” Urquil l a-Diaz v. Kapl an Univ., 780 F. 3d 1039, 1049 (11t h Cir. 2015). A disput e is genuine if “ t he record t aken as a whole could lead a rat ional t rier of fact t o find for t he nonmoving part y. ” Id. The t rial j udge should not weigh t he evidence, but det ermine whet her t here are any genuine issues of fact t hat should be resolved at t rial. Anderson v. Li bert y Lobby, Inc. , 477 U.S. 242, 249 (1986). In considering a mot ion for summary j udgment , t rial court s must give deference t o t he non-moving part y by “ considering all of t he evidence and t he inferences it may yield in t he light most f avorable t o t he nonmoving part y.” McGee v. Sent inel Of f ender Servs., LLC, 719 F. 3d 1236, 1242 (11t h Cir. 2013) (cit ing El l is v. Engl and, 432 F.3d 1321, 1325 (11t h Cir. 2005)). In making a mot ion f or summary j udgment , “ t he moving part y has t he burden of eit her negat ing an essent ial element of t he nonmoving part y’ s case or showing t hat t here is no evidence t o prove a fact necessary t o t he nonmoving part y’ s case. ” Id. Alt hough t he t rial court s must use caut ion when grant ing mot ions for summary j udgment , “ [ s]ummary j udgment procedure is properly regarded not as a disfavored Page 15 of 25 procedural short cut , but rat her as an int egral part of t he Federal Rules as a whole. ” Cel ot ex Corp. v. Cat ret t , 477 U.S. 317, 327 (1986). D. Discussion Relat or brings a ret aliat ion claim against AFC pursuant t o t he whist leblower provision of t he FCA. She cont ends t hat she was fired because she complained t hat AFC had violat ed Medicare regulat ions in how it billed for medical services. Specifically, she was concerned t hat AFC was billing for laborat ory t est s ordered by Dr. McCoy while he was not act ually present at t he clinic. The whist leblower provision of t he FCA provides prot ect ion for t hose who report violat ions of t he st at ut e. 31 U.S.C § 3720(h). Specifically, it provides relief t o an employee who was “ discharged, demot ed, suspended, t hreat ened, harassed, or in any ot her manner discriminat ed against in t he t erms and condit ions of employment because of lawful act s done by t he employee . . . in furt herance of an act ion under t his sect ion or t o st op . . . violat ions of t his subchapt er.” 31 U.S.C. § 3730(h)(1). While t he Elevent h Circuit has not yet ruled on t he applicable st andard for finding ret aliat ion in violat ion of t he FCA, t he Fift h Circuit and ot her circuit s have found t hat t he McDonnel l Dougl as framework is applicable t o t hese act ions. McDonnel l Dougl as v. Green, 411 U.S. 792, 802 (1973); Page 16 of 25 see, e.g., Diaz v. Kapl an Higher Educ., L.L.C., 820 F. 3d 172, 175 & n.3 (5t h Cir. 2016), El kharwil y v. Mayo Hol ding Co., 823 F.3d 462, 470 (8t h Cir. 2016), Harringt on v. Aggregat e Indus. Ne. Region, Inc., 668 F. 3d 25, 31 (1st Cir. 2012). In order t o bring a successful claim, a plaint if f must first est ablish a prima f acie case by showing “ (1) t hat [ s]he engaged in prot ect ed act ivit y, (2) t hat [ s]he suf fered an adverse employment act ion, and (3) ‘ t hat a causal link exist ed bet ween t he prot ect ed act ivit y and t he adverse act ion.’ ” Diaz, 820 F. 3d at 176 (quot ing Ort iz v. Cit y of San Ant onio Fire Dep’ t , 806 F. 3d 822, 827 (5t h Cir. 2015)). An int ernal complaint t o a supervisor qualifies as a prot ect ed act ivit y if t hat complaint “ allege[ s] fraud on t he government .” Unit ed St at es ex rel . Sanchez v. Lymphat x, Inc., 596 F.3d 1300, 1304 (11t h Cir. 2010) (quot ing McKenzie v. Bel l Sout h Tel ecomms., Inc., 219 F.3d 508, 516 (6t h Cir. 2000)). An int ernal complaint suf ficient ly alleges fraud if t he allegat ions “ are suf ficient t o support a reasonable conclusion t hat t he employer could have feared being report ed t o t he government . . . or sued in a qui t am act ion. ” Id. In t his case, Relat or emailed AFC’ s president , det ailing her concerns about AFC’ s possible violat ion of t he St ark Law. That claimed violat ion would ent it le Relat or t o file a qui t am act ion against AFC, as indeed she did aft er her t erminat ion. 42 U.S.C. § Page 17 of 25 1395nn. Therefore, Relat or has shown t hat she engaged in a prot ect ed act ivit y. Relat or has also shown t hat AFC t erminat ed her, which qualifies as an adverse employment act ion. Crawf ord v. Carrol l , 529 F.3d 961, 970 (11t h Cir. 2008). Therefore, Relat or has shown t he first t wo element s of a prima f acie case for ret aliat ion, and t he only element at issue is causat ion. In order t o demonst rat e causat ion, a plaint if f “ merely has t o prove t hat t he prot ect ed act ivit y and t he negat ive employment act ion are not complet ely unrelat ed.” E. E.O.C. v. Reichhol d Chems. , Inc., 988 F. 2d 1564, 1571-72 (11t h Cir. 1993). This means t hat she “ must at least est ablish t hat t he employer was act ually aware of t he prot ect ed expression at t he t ime t he employer t ook adverse employment act ion against t he plaint if f. ” Hol if i el d v. Reno, 115 F.3d 1555, 1566 (11t h Cir. 1997). Close t emporal proximit y can also be ef fect ive t o raise an inference of causat ion, but if t his is t he only basis of causat ion, t he act ions must be very close in t ime. Cl ark Cnt y. Sch. Dist . v. Breeden, 532 U.S. 268, 273 (2001). In f act , t he Elevent h Circuit held t hat a period of t hree or four mont hs is t oo long. Thomas v. Cooper Light ing, Inc., 506 F. 3d 1361, 1364 (11t h Cir. 2007). However, t he Elevent h Circuit has found Page 18 of 25 t hat seven weeks is “ suf ficient ly proximat e t o creat e a causal nexus. ” Farl ey v. Nat ionwi de Mut . Ins. Co. , 197 F. 3d 1322, 1337 (11t h Cir. 1999). In t he present case, Relat or can est ablish t hat Hawley, who made t he ult imat e decision t o fire her, knew about t he prot ect ed act ivit y because he was one of t he recipient s of her May 18, 2010 e-mail. (Pl. Ex. 18.) However, Kerr, who recommended t hat Hawley fire Salt ers, t est ified t hat he had no knowledge of t he e-mail and he was not one of it s recipient s. (Kerr Dep. at 75-76.) Therefore, Relat or can only est ablish awareness of t he prot ect ed act ion for one of t he individuals involved in her t erminat ion. However, as t he individual wit h awareness was t he one who ult imat ely made t he decision t o dismiss Relat or, t his is presumably enough for a prima f acie case of ret aliat ion, especially when coupled wit h t he fact t hat Relat or was fired j ust six weeks aft er her prot ect ed act ivit y. As Salt ers has est ablished a prima f aci e case of ret aliat ion, t he burden shift s t o AFC t o “ art iculat e some legit imat e, nondiscriminat ory reason” for t he adverse employment decision. McDonnel l Dougl as Corp. , 411 U.S. at 802. Once AFC meet s t his burden, it is up t o Relat or t o show t hat t he reasons given are a pret ext f or illegal ret aliat ion. Tex. Dep’ t of Cmt y. Af f airs v. Burdine, 450 U.S. 248, 256 (1981). An employee can do t his Page 19 of 25 “ eit her direct ly by persuading t he court t hat a [ret aliat ory] reason more likely mot ivat ed t he employer or indirect ly by showing t hat t he employer’ s proffered explanat ion is unwort hy of credence.” Id. at 256. However, “ [ p]rovided t hat t he proffered reason is one t hat might mot ivat e a reasonable employer, an employee must meet t hat reason head on, and rebut it , and t hat employee cannot succeed by simply quarreling wit h t he wisdom of t hat reason.” Chapman v. AI Transp., 229 F. 3d 1012, 1030 (11t h Cir. 2000). In t his case, AFC has of fered a legit imat e nonret aliat ory reason f or t erminat ing Relat or. AFC claims t hat Relat or was fired because of her poor management skills, t he poor work environment she creat ed in t he CPC, and ult imat ely her inabilit y t o acknowledge t he sit uat ion and make meaningful changes t o t he way she managed t he CPC. AFC support s t his claim wit h a significant amount of evidence, mainly in t he form of t est imony of t hose who worked wit h Relat or and report ed t hat t hey felt t hreat ened by her management st yle and did not t hink she was good at her j ob. The burden t hus shift s t o Relat or t o present evidence t hat would lead a reasonable j ury t o conclude t hat t he proferred legit imat e reason is eit her out weighed by a ret aliat ory reason, or not wort hy of belief. Page 20 of 25 Burdine, 450 U.S. at 256. First , Relat or argues t hat she could not have been fired for her poor j ob performance because her employment file does not reflect AFC’ s purport ed assessment of her behavior. According t o Relat or, since her employment file does not cont ain any records of discipline or even any negat ive evaluat ions, but inst ead only cont ains records of promot ions and bonuses, she could not have been fired for her unsat isf act ory perf ormance. She also provides evidence t hat one ot her employee (Pickens) was disciplined and subj ect ed t o correct ive act ion, which was document ed in her file. Even t hough Relat or does provide evidence t hat discipline forms and est ablished AFC discipline procedures exist ed, t he Employee Handbook also clearly st at es t hat t hese disciplinary procedures did not have t o be followed in all cases. Furt her Pickens was not similarly sit uat ed t o Relat or. Pickens did not hold t he same posit ion, and furt her, t here is no allegat ion t hat she engaged in similar misconduct . For example, one of AFC’ s complaint s about Pickens was t ardiness, which is not similar t o AFC’ s complaint s about Relat or. Thus, t he lack of negat ive mat erial in Relat or’ s file does not show t hat AFC’ s proferred reasons for t erminat ing her are pret ext ual. Page 21 of 25 Relat or also cit es t o an opinion from t he U.S. Dist rict Court for t he Middle Dist rict of Alabama for t he proposit ion t hat she need only show t hat “ t he negat ive t reat ment she suf f ered was mot ivat ed at l east in part by ret aliat ion. ” Mann v. Ol st en Cert i f ied Heal t hcare Corp. , 49 F. Supp. 2d 1307, 1316 (M.D. Ala. 1999) (emphasis added). However, t hat is not t he applicable st andard in t his case. The McDonnel l Dougl as st andard requires t hat t he employee show t hat t he employer’ s proferred legit imat e reason was pret ext ual. Burdine, 450 U.S. at 248. An employee who fails t o show pret ext will not meet her burden under McDonnel l Dougl as, even if she raises possible ret alit at ory reasons f or t he employment act ion. See St . Mary’ s Honor Ct r. v. Hicks, 509 U.S. 502, 515-16 (1993) (quot ing Burdine, 450 U.S. at 253) (“ a reason cannot be proved t o be a ‘ pret ext f or discri minat ion’ unless it is shown bot h t hat t he reason was f alse, and t hat discriminat ion was t he real reason” ) (emphasis in original). Furt her, Relat or herself t est ified t hat she asked ot her employees about her perf ormance af t er t he issues were brought t o her at t ent ion in June 2010, and t hey confirmed t hat t here were problems wit h her management st yle. They t old her t hat t hey did not t rust her and felt t hat she would not list en t o t hem. Therefore, Relat or’ s own t est imony Page 22 of 25 confirmed t hat she could reasonably have been t erminat ed because numerous employees had expressed genuine issues wit h her management of t he CPC. Relat or does not argue t hat she did not have management st yle problems or t hat she did not do t he t hings t hat AFC list s as reasons for her t erminat ion. Inst ead, she alleges t hat she was unaware of t hese problems unt il she met wit h Kerr and Hawley in lat e June 2010, and t hat she was never given an opport unit y t o correct her management st yle problems, because she was t erminat ed almost immediat ely following t he meet ing. AFC does not disput e t hat she did not have t he chance t o make changes, but claims t hat management chose t o fire her st raight away because aft er t he meet ing, she at t empt ed t o ret aliat e against ot her employees. Relat or disput es t hat her conversat ions aft er t he meet ing were ret aliat ory, claiming inst ead t hat t hey were at t empt s t o learn how t o fix her management problems. Aft er all, Relat or was direct ed by Hawley and Kerr t o “ t alk t o some . . . coworkers t o see if t hey could make suggest ions. ” (Salt ers Dep. at 155.) Relat or claims t hat in speaking t o her co-workers, she was simply following t hese direct inst ruct ions, but t hat AFC used t his very compliance as a pret ext t o t erminat e her. Page 23 of 25 AFC’ s own June 11 memorandum about Relat or’ s conduct provides furt her evidence of pret ext . This memorandum by Kerr, who did not know about Relat or’ s prot ect ed act ivit y, recommended t hat Relat or be demot ed and allowed t o improve her performance. It did not suggest immediat e t erminat ion. Yet , bet ween June 11 and June 30, Hawley— who knew about Relat or’ s prot ect ed act ivit y— decided t o t erminat e Relat or wit hout t his demot ion or opport unit y for improvement . Kerr’ s July 2 t erminat ion memorandum claims t hat he t old Hawley t o fire Relat or. However, t his memorandum was not creat ed unt il af t er t he t erminat ion occurred, and AFC does not disput e t hat Hawley made t he ult imat e decision. These circumst ances raise a j ury quest ion on t he issue of pret ext . AFC has provided ample evidence of a possible legit imat e reason for t he t erminat ion. However, “ t he dist rict court must view all evidence in t he light most f avorable t o t he non-moving part y, and resolve all reasonable doubt s about t he fact s in it s favor. ” Inf o. Sys. & Net works Corp. v. Cit y of At l ant a, 281 F. 3d 1220, 1224 (11t h Cir. 2002). If a nonmoving part y— such as Relat or in t his case— set [s] f ort h specific f act s “ showing t hat t here is a genuine issue for t rial” such t hat “ a j ury [could] ret urn a verdict for t hat part y,” summary j udgment cannot be grant ed. Page 24 of 25 Anderson v. Libert y Lobby, Inc., 477 U.S. 242, 249-50 (1956) (quot ing Fed. R. Civ. P. 56). The Court cannot , at summary j udgment “ weigh t he evidence and det ermine t he t rut h of t he mat t er.” Id. at 249. A j ury could find t hat Relat or’ s quick t erminat ion wit h no opport unit y t o improve her conduct and no gradual discipline is evidence of pret ext . Therefore, summary j udgment as t o Relat or’ s ret aliat ion claim is due t o be denied. E. Conclusion For t he reasons st at ed above, Defendant ’ s mot ion for part ial summary j udgment is due t o be DENIED. A separat e order consist ent wit h t his opinion will be ent ered. DONE and ORDERED t his 15t h day of December 2016. _____________________________ L. Scot t Coogler Unit ed St at es Dist rict Judge 186291 Page 25 of 25
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