Robin Trenette Dillon VS Lakeview Regional Medical Center Auxiliary, Inc., Kelo McKay and XYZ Insurance Corporation
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2011 CA 1878 ROBIN TRENETTE DILLON VERSUS LAKEVIEW REGIONAL MEDICAL CENTER AUXILIARY INC AND KELO McKAY j Judgment Rendered WUN 13 2012 t On Appeal from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket No 2009 16431 The Honorable William J Crain Judge Presiding Roderick T Morris Counsel for PlaintiffAppellant New Robin Trenette Dillon Roads Louisiana Leslie W Ehret Suzanne M Baton Counsel for DefendantsAppellees Lakeview Regional Medical Center Risey Rouge Louisiana BEFORE LLC and Kelo McKay GAIDRY McDONALD AND HUGHES JJ HUGHES J This is an appeal of a summary judgment in favor of the defendants dismissing the plaintiffs case based on the Whistleblower Statute For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Robin Trenette Dillon was hired as a nurse by Lakeview Regional Medical Center LLC Lakeview on or about June 19 2006 Her employment was terminated on July 14 2009 Ms Dillon initially filed a claim with the Equal Employment Opportunity Commission EEOC asserting that she had been subjected to racial discrimination however the EEOC notified her in August 2009 that they were unable to substantiate that a violation had occurred Thereafter Ms Dillon filed the instant suit on October 28 2009 contending that she was fired because she had reported a threat to her employer allegedly made by another nurse to a patient and that the termination of her employment violated Louisiana Whistleblower s Statute LSAR 23 S 967 In this suit Ms Dillon named as defendants Lakeview her Lakeview supervisor Kelo McKay and Lakeview sinsurer XYZ Insurance Company The plaintiff sought reinstatement back pay benefits compensatory damages attorney fees court costs and all other equitable relief to which she was entitled Lakeview and McKay answered the suit denying the allegations and specifically alleging that Ms Dillon termination was legitimate justified s and non retaliatory Claiming they were not in violation of LSA R S Although the plaintiff named Lakeview Regional Medical Center in her petition as Lakeview Regional Medical Center Auxiliary Inc Lakeview indicated in its answer that its correct name was Lakeview Regional Medical Center LLC The plaintiffs petition was filed by facsimile on October 28 2009 and the filing was deemed complete at that time pursuant to LSAR 13 since the original was later filed within the requisite five days on S 850 November 2 2009 2 967 23 and asserting that the plaintiffs suit was brought in bad faith the defendants also alleged in their answer that they were entitled to collect from the plaintiff attorney fees and court costs under the statute The defendants thereafter filed a motion for summary judgment which was granted by the trial court and ajudgment was signed on February 11 2011 dismissing the plaintiffs suit The plaintiff has appealed this judgment asserting on appeal that the trial court erred in failing to find there were no genuine issues of material fact precluding summary judgment in failing to recognize the Nurse Practice Act LSA R 37 et seq and in failing to S 911 recognize that Nurse Melissa Creath action in threatening a patient under s her care was in violation of LSAR 14 S 36a LAW AND ANALYSIS Motion for Summary Jud tg vent The summary judgment procedure is designed to secure the just speedy and inexpensive determination of every action except those disallowed by LSAC art 969 the procedure is favored and shall be P C construed to accomplish these ends LSAC art 966 Summary P C 2 A judgment shall be rendered in favor of the mover 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 LSAC art P C B 966 Appellate courts review summary judgments de novo under the same criteria that govern a district court consideration of whether summary s Louisiana Revised Statute LSA R 23 S 967 Dprovides that if a suit or complaint is brought in bad faith or if the court determines that the employer act or practice was not in violation of the law the employer s may be entitled to reasonable attorney fees and court costs from the employee Louisiana Revised Statute 14 provides Assault is an attempt to commit a battery or the intentional 36 placing of another in reasonable apprehension of receiving a battery 3 judgment is appropriate Samaha v Rau 20071726 La 2 977 08 26 2d So 880 882 Allen v State ex rel Ernest N Morial New Orleans Exhibition Hall Authority 2002 1072 La 4 842 So 373 377 03 9 2d Boudreaux v Vankerkhove 2007 2555 La App I Cir 8 993 08 11 2d 729 So 725 30 In ruling on a motion for summary judgment the judge role is not to s evaluate the weight of the 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 s Hines v Garrett 2004 0806 La 6 876 So 764 765 04 25 2d 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 summary judgment is appropriate Id 876 So at 765 2d 66 On motion for summary judgment the burden of proof remains 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 action or s 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 If the opponent of the motion fails to do so there is no genuine issue of material fact and summary judgment will be granted See LSAC P C art 966 2 C When a motion for summary judgment is made and supported as provided in LSAC art 967 an adverse party may not rest on the mere P C 4 allegations or denials of his pleadings but his response by affidavits or as otherwise provided in LSA C art 967 must set forth specific facts P showing that there is a genuine issue for trial If he does not so respond summary judgment if appropriate shall be rendered against him P C art 967 B LSA See also Board of Supervisors of Louisiana State University v Louisiana Agricultural Finance Authority 2007 0107 La App 1 Cir 2 984 So 72 79 80 Cressionnie v Intrepid Inc 08 8 2d 2003 1714 La App l Cir 5 879 So 736 738 04 14 2d Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Richard v Hall 2003 1488 La 4 874 So 131 137 Dyess v American National 04 23 2d Property and Casualty Company 2003 1971 La App 1 Cir 6 04 25 886 So 448 451 writ denied 2004 1858 La 10 885 So 592 2d 04 29 2d Cressionnie v Intrepid Inc 879 So at 738 39 2d The instant action is based on Louisiana Whistleblower Statute s LSA R 23 which provides S 967 A An employer shall not take reprisal against an employee who in good faith and after advising the employer of the violation of law 1 Discloses or threatens to disclose a workplace act or practice that is in violation of state law 2 Provides information to or testifies before any public body conducting an investigation hearing or inquiry into any violation of law 3 Objects to or refuses to participate in an employment act or practice that is in violation of law B An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section If the court finds the provisions of Subsection A of this Section have been violated the plaintiff may recover from 5 the employer damages reasonable attorney fees and court costs C For the purposes of this Section the following terms shall have the definitions ascribed below lReprisal includes firing layoff loss of benefits or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section however nothing in this Section shall prohibit an employer from enforcing an established employment policy procedure or practice or exempt an employee from compliance with such 2 Damages include compensatory damages back pay benefits reinstatement reasonable attorney fees and court costs resulting from the reprisal D If suit or complaint is brought in bad faith or if it should be determined by a court that the employer act or s practice was not in violation of the law the employer may be entitled to reasonable attorney fees and court costs from the employee Thus under the provisions of the Whistleblower Statute it is apparent that an employee is entitled to damages attorney fees and court costs thereunder if his employer fires him lays him off causes a loss of his benefits or takes any discriminatory action against him as a reprisal for the employee advising the employer that the employer has violated the law and thereafter the employee 1 discloses or threatens to disclose a workplace act or practice that is in violation of state law 2 provides information to or testifies before any public body conducting an investigation hearing or inquiry into any violation of law or 3 objects to or refuses to participate in an employment act or practice that is in violation oflaw In Accardo v Louisiana Health Services Indemnity Company 2005 2377 La App 1 Cir 6 943 So 381 383 this court 06 21 2d examined LSA R 23 to determine whether the statute provided S 967 protection to a plaintiff who reports what he believes in good faith is a violation of law Noting that the statute provides protection to employees 6 against reprisal from employers for reporting or refusing to participate in illegal work practices the court stated that whether a plaintiff must prove an actual violation of state law to establish a Louisiana Whistleblower claim was a res nova issue Id 943 So at 383 2d After applying pertinent principles of statutory construction this court concluded that the statute requires an employee to prove an actual violation of state law by the employer in order to prevail on the merits under the Whistleblower Statute Id 943 So at 387 2d Attached to the defendants motion for summary judgment in this case were various Lakeview employment records including a Record of Employee Conference dated November 19 2008 in which it was noted that Nurse Melissa Creath was suspended for one day following an incident involving a patient in the hospital during which the patient allegedly spit his medication onto Nurse Creath who was pregnant at the time whereupon Nurse Creath told the patient that if her baby got sick she would fj king kill him The employee conference record further stated that Nurse Creath was informed that if she threatened or cursed a patient again her employment would be terminated The plaintiff deposition was also filed into the record in support of s the defendants motion for summary judgment Ms Dillon testified that she was not personally present during the incident involving Nurse Creath and the patient as she was not working that day and that she had no personal knowledge whether Nurse Creath was making a real threat to the patient Further Ms Dillon admitted that she had no reason to believe that if there was an investigation into the Creath incident she would be questioned since she had no personal knowledge about the incident Ms Dillon did not indicate either in her deposition or in the affidavit she filed into the record 7 that she reported Nurse Creath to either the Nursing Board or the Department of Health and Hospitals although she argued that she thought Nurse Creath behavior should have been reported s After a thorough review of the record presented in this case and the applicable law we conclude that the plaintiff in this case failed to show that she will be able to bear her burden of proof under the Whistleblower Statute which requires the employeeplaintiff to prove an actual violation of state law by the employer in order to prevail Ms Dillon contends that the threatening words uttered by Nurse Creath to the patent at issue constituted an assault and were therefore criminal Since an assault is an attempt to commit a battery or the intentional placing of another in reasonable apprehension of receiving a battery pursuant to LSAR 14 in order S 36 to prove that Nurse Creath assaulted her patient it would be necessary to show that she attempted to commit a battery on the patient or that she placed her patient in fear ofreceiving a battery There is simply no indication in the record that Nurse Creath either attempted to batter the patient or that the patient was actually placed in fear that Nurse Creath would commit battery upon his person The plaintiff further contends that Nurse Creath statement to her s patient violated the Nurse Practice Act LSAR 37 S 911 et seq particularly LSA R 37 which provides S 921 The board may deny revoke suspend probate limit or restrict any license to practice as a registered nurse or an advanced practice registered nurse impose fines and assess costs or otherwise discipline a licensee and the board may 5 Ms Dillon has asserted that Lakeview had a duty to report the Creath incident to either the Louisiana Nursing Board or the Department of Health and Hospitals however she cites no legal authority that would impose such a duty While we note that the Louisiana Health Care Professionals Reporting Act LSA S 1745 R 37 11 17 1745 37 requires the reporting of adverse actions taken against health care professionals or a surrender of clinical privileges in lieu thereof due to an impairment or possible impairment resulting from alcohol or drug dependency we can find no statutory reporting requirement applicable to the particular facts and circumstances of this case 8 limit restrict delay or deny a student nurse from entering or continuing the clinical phase of nursing education upon proof that the licensee or student nurse 8 Is guilty of moral turpitude Although moral turpitude is not defined in the Nurse Practice Act in Title 40 Public Health and Safety Chapter 5 Miscellaneous Health Provisions Part VII Emergency Medical Services moral turpitude is defined as an act of baseness vileness or depravity in the duties which one person owes another or to society in general which is contrary to the usual accepted and customary rule of right and duty which a person should follow LSA 40 1 S R 123 18 6 At most the plaintiff in this case has demonstrated that Nurse Creath in response to a patient actual or threatened spitting upon her person s cursed and threatened her patient and although the threat contained the word kill there was no proof in the record that Nurse Creath who was allegedly pregnant at the time had any intent or ability to carry out the threat or that the do patient feared that she would so Nurse Creath employer s Lakeview obviously determined that Nurse Creath responded in anger to the situation rather than determining that Nurse Creath actually intended to kill the patient since the hospital administered only a one day suspension and warning to her that future such behavior would result in the termination of her employment Ms Dillon produced no evidence to the contrary in opposition to the motion for summary judgment We further note that there a We note that this definition of moral turpitude is substantially the same as that found in Black Law s Dictionary which defines moral turpitude as an act of baseness vileness or the depravity in private and social duties which man owes to his fellow roan or to society in general contrary to accepted and customary rule of right and duty between man and man Black Law Dictionary 910 5th ed 1979 s 7 We also note that Ms Dillon made an additional argument that Nurse Creath statement to her patient s violated a nurse first do no harm creed however she cited no authority imposing a duty of this nature s statutory or otherwise 9 were no allegations of illegal activity on the part of Ms Dillon supervisor s Kelo McKay who was also made a defendant in this case Furthermore it is not a foregone conclusion that the actions of Nurse Creath would be dispositive in this case The Whistleblower Statute provides a cause of action to an employee against any employer who engages in a practice prohibited by LSAR 23 Subsection A S 967 which is described in Subsection A as being a violation of the law Emphasis added Thus it could be concluded that the employer must be the actor who violated the law in order for there to be a cause of action under this statute Although it is unnecessary to resolve this point in order to dispose of the issue presented in this case since we have determined that regardless the act of the plaintiff coworker was not established as having s in fact been a criminal act as alleged we think it worth noting and observe that the employer in this case Lakeview did not condone the act of Nurse Creath but rather suspended her as a disciplinary action and determined that any further act of this nature would result in termination of the s nurse employment Therefore the actions taken by the hospitalemployer could not be said to have been illegal in any way When a motion for summary judgment is made and supported as provided in LSAC art 967 an adverse party may not rest on the mere P C allegations or denials but must respond with affirmative evidence See Thomas v Hodges 2010 0678 La App 1 Cir 10 48 So 1274 29 3d 1281 writ denied 2010 2637 La 2 54 So 1109 The plaintiff 11 11 3d has failed to meet her burden to show a violation of law was committed by We note though do not decide herein that there is no indication in the provisions of LSA R 23 in S 967 referencing an act or practice of the employer that such would encompass unauthorized acts of its employees But cf LSA C art 2317 imposing tortious liability on an employer for employee sact under certain circumstances 10 her employer or by her coworker in this case therefore we find no error in the summary judgment granted by the trial court dismissing the case CONCLUSION For the reasons assigned herein the summary judgment granted by the trial court is affirmed All costs of this appeal are to be borne by the plaintiffappellant Robin Trenette Dillon AFFIRMED 9 Having decided the appeal on this basis we find it unnecessary to address other issues raised on appeal 11
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