Salters v. American Family Health Care Inc

Filing 107

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 12/15/2016. (PSM)

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,
Plaintiff,
vs.
AMERICAN FAMILY CARE,
INC.,
Defendant.

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5:10-cv-2843-LSC

MEMORANDUM OF OPINION
I.

Introduction

Plaintiff/Relator Anita C. Salters (“Relator”) filed this action against
her former employer American Family Care (“AFC”) alleging that AFC
violated the False Claims Act (“FCA”), 31 U.S.C. § 3729, by submitting
false claims to the government, and that it engaged in physician referrals
in violation of the Stark Law, 42 U.S.C. § 1395nn. She further alleges that
she was unlawfully terminated in retaliation for reporting these potential
violations to her superiors contrary to the FCA’s anti-retaliation provision.
31 U.S.C. § 3730(h).

Before the Court is defendant AFC’s motion for

partial summary judgment (Doc. 92), which has been fully briefed and is

Page 1 of 25

ripe for review. For the reasons set out below, AFC’s motion is due to be
denied.
II.

Background
A. Relator’s Management Style

AFC, a medical care provider, hired Relator as an audit supervisor in
January 2007 and promoted her to director of the Claims Processing
Center (“CPC”) in December 2007. (Salters Dep. at 14, Kerr Dep. at 103.)
With this promotion, she received a $10,000 raise and reported directly
to Joseph Hawley (“Hawley”), AFC’s Chief Financial Officer. (Salters Dep.
at 146.) Her duties as director of the CPC included: ensuring that the
claims submitted were in compliance with all applicable regulations,
collecting all sums due to AFC within a reasonable period of time, and
supervising approximately twenty-five other employees in the CPC.
(Salters Dep. at 190, Johansen Dep. at 37 & 72, Hawley Dec. ¶ 5.) Three
subordinate supervisors reported directly to Relator: Donna Crocker
(“Crocker”), Valencia McAdory Pickens (“Pickens”), and Patricia Allen
(“Allen”). (Salters Dep. at 128.).
Before July 2010, Relator had only one disciplinary memorandum in
her file and it was unrelated to this case. (Kerr Dep. at 116.) Relator was
paid quarterly bonuses in 2008 and 2009 but not in 2010. (Hawley Dec. ¶
Page 2 of 25

4.) However, according to AFC’s Director of Human Resources James Kerr
(“Kerr”), in February 2010 he created a Word document listing concerns
about Relator’s management style which he developed from “informal
conversations with employees within CPC” and his own observations.
(Kerr Dep. at 48-56.) Kerr further claims that he shared this document
with Hawley after creating it. The document included concerns about
other employees “becom[ing] targets for retaliation,” requiring coworkers to “do her bidding” by making her coffee and getting her lunch,
bad workload distribution, inaccurate communications, unprofessional
behavior like playing favorites and intercepting emails, inappropriate
dress and speech, hypocrisy and lack of credibility, punishing others for
infractions that she committed herself, and capriciousness about working
hours. (Pl. Ex. 48.) The document, however, only bears a handwritten
date, though Kerr claims that the date of creation is available in its
native format and that the metadata will show that it was created 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 supports Relator’s alleged management problems through
depositions and declarations of those she supervised. For example,
Crocker and Pickens claim that Relator punished her staff for breaking
rules but then broke them herself with impunity. (Crocker Dec. ¶ 6,
Pickens Dec. ¶ 12.) Staff members Erica Jackson and Evelyn Roper echoed
these complaints and also state that Relator required her staff to work
ten to thirteen hour days but then took long vacations and was often
absent. (Jackson Dec. ¶ 10, Roper Dec. ¶ 9.) Tara Walton Person repeated
the same complaints, and also stated that Relator did not allow personal
emails, but then circulated her own non-work emails. (Person Dec. ¶ 8.)
According to Allen, she forbade personal conversations but then had
lengthy non-work conversations with employees in her office, “made
rude, unprofessional and false comments about [Allen] to [Allen’s]
subordinates,” and “treat[ed] employees in a manner that was
completely uncalled for and without regard for professional decorum.”
(Allen Dec. ¶ 5 & 12.)
Pickens describes how Relator would make one of the oldest CPC
employees get lunch for her every day. (Pickens Dec. ¶ 6.) Further,
Relator does not dispute that she told Pickens, who is African-American,
to “kiss her white ass.” (Pickens Dep. at 125, Doc. 96 at 12.) According to
Page 4 of 25

Pickens, this comment was made twice, and both times it was said in
front of co-workers. (Id. at 124-28.) However, Pickens also admits that
she never reported this comment, and laughed it off at the moment
because “if [Pickens] had went to the other way, it wouldn’t have been
good.” (Id. at 127-28.)
According to various employees,

Relator

was

a liar

and “a

micromanager [who] did not train, encourage or empower” them and
“left employees with confused expectations and the work environment
unpredictable.” (Allen Dec. ¶ 6, Howard Dec. ¶ 6, Person Dec. ¶ 6,
Pickens Dec. ¶ 5, Roper Dec. ¶ 7.) These employees also stated that they
did not complain or report these incidents of misconduct because Relator
“engaged in threats, intimidation and retaliation . . . [and] sa[id] that if
she was ‘going down’ (getting fired) that we would go down with her.”
(Howard Dec. ¶ 5 & 6, Jackson Dec. ¶ 5, Nelson Dec. ¶ 5 & 8, Allen Dec. ¶
8, Pickens Dep. at 125-128.) Other employees averred that fears of
retaliation were “real, as [they] witnessed [Relator] retaliate against
other employees for what would be considered minor slights.” (Crocker
Dec. ¶ 7, Woodfin Dec. ¶ 6, Howard Dec. ¶ 7, Jackson Dec. ¶ 8.)
Six employees assert that Relator’s management problems were “a
cause of great stress and a problem for the entire department.” (Allen
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Dec. ¶ 5, Crocker Dec. ¶ 4, Howard Dec. ¶ 4, Jackson Dec. ¶ 4, Nelson
Dec. ¶ 4, Pickens Dec. ¶ 4.) One employee complained that she “felt like
[she] was tortured by” Relator, who would “harass [her], write [her] up
without cause . . . [and] announce[] in front of [her] and others that she
was going to fire [her].” (Jackson Dec. ¶ 8.) Another claimed that she
“believe[d] she was falsely accusing [her] of things in order to build a
fictitious personnel record to justify terminating” her. (Howard Dec. ¶ 7.)
A supervisor professed that Relator’s “unprofessional manner . . . made
[them] and other employees uncomfortable.” (Crocker Dec. ¶ 5.) Some
staff members also contend that the situation impacted their health.
(Howard Dec. ¶ 11, Jackson Dec. ¶ 11, Westwood Dep. at 81-82.)
As discussed further hereinafter, Relator engaged in protected
activity by reporting alleged Stark Law violations in March 2010. On May
11, 2010, Hawley met with Relator, and the meeting agenda listed
“management style” among other discussion topics. (Pl. Ex. 75.) Kerr
claims that in May 2010, he was still receiving unsolicited complaints
from CPC employees about Relator, which he recorded in another Word
document. (Kerr Dep. at 67.) Once again, this document only has a
handwritten date, but Kerr claims that the date can be established from

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the metadata. 2 (Id. at 67-68, Pl. Ex. 51.) The complaints in this list are
consistent with those in the earlier Word document, but are purportedly
from different employees, namely Sylvia Cook, Robin Johnson, and Hope
Harman. (Pl. Ex. 51.)
Relator took a vacation in early June 2010. Hawley and Kerr claim
that Kerr gave Hawley a memo about the problems with Relator around
June 11, 2010. (Hawley Dec. ¶ 9, Kerr Dep. at 118-121.) The memo
identified the problems discussed above, and offered Relator continued
employment with AFC if she took a demotion and improved her
performance. (Pl. Ex. 64). This memo was addressed to Relator, and Kerr
suggested that Hawley deliver it to her, but Hawley rejected this
suggestion because he “wanted to sit down with her and talk about the
issues identified.” (Id., Hawley Dec. ¶ 9, Hawley Dep. at 91.) However,
Hawley claims that he did not meet with Relator immediately because of
“pressing business matters and vacation schedules.” (Hawley Dec. ¶ 12.)
Kerr also claims that AFC conducted an “employee engagement survey,”
which “afforded [employees] an opportunity to comment about their
manager.” (Kerr Dep. at 125-26.) Relator admits that she knew about and
participated in the survey. (Salters Dep. at 153-54.) This survey was
2

See supra n.1.

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online and anonymous, and, according to Kerr, unrelated to the problems
AFC was having with Relator. (Id. at 125-28.) In this survey, CPC
employees complained of Relator’s favoritism, inconsistent rules, bad
morale, lack of confidentiality, micromanagement, lack of responsibility,
retaliation and unprofessionalism. (Pl. Ex. 65.)
After this survey was completed, AFC claims that Jackson called
AFC owner Bruce Irwin (“Irwin”) to complain about Relator. (Kerr Dep. at
73-74, Hawley Dep. at 97, Jackson Dec. ¶ 13.) Apparently as a result of
this call, Kerr, Hawley, and Chief Operating Officer Randy Johansen
(“Johansen”) conducted an investigation by interviewing three women
who worked in different positions under Relator. (Hawley Dep. at 97, Pl.
Ex. 52 & 63.) The result of these interviews paralleled the existing
complaints about Relator. (Pl. Ex. 52.) Hawley also asserts, and Kerr’s
memo states, that none of the interviewees had anything positive to say
about Relator. (Hawley Dep. at 97-98, Pl. Ex. 63.) Relator admits that she
met with Kerr and Hawley about the results of these interviews in late
June 2010, and was told that her employees didn’t trust her and were
unhappy with her management style. (Salters Dep. at 153-54, Pl. Ex. 63.)
According to Relator, Hawley and Kerr told her “to figure out if [she]
thought [she] could correct the damage that had been done and to talk to
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some of [her] coworkers to see if they could make suggestions.” (Salters
Dep. at 155.)
Relator was told at the late June meeting that AFC had not made a
final decision about her employment status, but she was warned that she
could be terminated. (Pl. Ex. 63.) Hawley asserts that Relator was told
not to discipline or retaliate against any of her employees before
management made a final decision. (Id., Hawley Dec. ¶ 16.) According to
Hawley, he was concerned that AFC would get sued because Relator had
created a hostile work environment. (Hawley Dep. at 93-94, Hawley Dec.
¶ 16.)
Relator also admits that she spoke to some of her staff after her
meeting with Hawley and Kerr, and that they said “that they felt like
[she] had micromanaged and [she] wasn’t giving them a chance to make
suggestions and corrections.” (Id.) They also told Relator that they did
not trust her, and that they felt like she did not listen to them. (Id. at
157-58.) Relator alleges that that one employee told her that she “she
knew that [Relator] didn’t mean to hurt anybody.” (Salters Dep. at 159.)
Some of the employees she spoke to, however, allege that Relator tried
to “get information from [her] as to who may have complained.”
(Woodfin Dec. ¶ 8, Allen Dec. ¶ 14.) A termination memo created on July
Page 9 of 25

2, 2010 and placed in Salter’s employment folder contends that two
employees complained that Relator had criticized and attempted to
retaliate against those who she thought might have reported her to
management. (Pl. Ex. 63.)
The Memo sets out that based on this behavior, Kerr informed
Hawley that “the situation was not salvageable and that [Relator] should
be terminated.” (Id.) Hawley then made the decision to terminate
Relator, purportedly because “of the way she treated her subordinates . .
. her loss of respect and trust . . . her failure to delegate work and train .
. . and because she attempted to find out who had complained.” (Hawley
Dec. ¶ 18.) However, Irwin and Johansen also were involved in this
decision. (Kerr Dep. at 114.) Relator was then terminated by Kerr and
Hawley on June 30, 2010. (Salters Dep. at 14 & 161.)
Relator insists that AFC did not follow the proper procedures for
discipline and termination as set forth in the Employee Handbook. (Pl.
Ex. 95.) The Handbook provides for progressive discipline, including a
written warning for a first offense, suspension for another offense, and
termination for a third offense. (Id. at 15.) Yet, the Handbook also states
that “[t]here may be circumstances when one or more steps are bypassed
or repeated.” (Id. at 14.) Relator points out that Pickens was disciplined
Page 10 of 25

while working at AFC through “employee counseling” and a written
warning. (Pl. Ex. 97) A record of this discipline was placed in Pickens’s
file, along with her response to the warning 3. (Id.) Pickens also testified
that she received another warning for tardiness. (Pickens Dep. at 102-03.)
Relator also avers that Hawley never conducted an annual review of
her work, which was required by the Employee Handbook, and that such
reviews were regularly conducted with Pickens. (Pl. Ex. 95 at 36.) While
Pickens’s file contained records of these annual reviews, Relator’s had
none. Relator’s file also contained only one unrelated record of
misconduct, and contained evidence of a promotion and three raises. (Pl.
Ex. 60.) There was no evidence of complaints about Relator’s behavior in
her file until after she engaged in the protected activity. (Id.) Even after
her termination, the only documents in her file that list these supposed
complaints are dated July 2, 2010. 4 Relator also professes that she never
met with Hawley or Kerr to discuss her job performance until late 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.)

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and was unaware that any problems existed before that meeting. (Salters
Dec. at 151-53.)
B. Allegations of Improper Billing
Throughout her tenure at AFC, Relator repeatedly brought issues with
the company’s billing practices to her supervisor’s attention. 5 (Salters
Dep. at 67, 189, 191-94, 200-01.) For example, in 2007 Relator emailed
Birmingham Clinical Director Kay Park (“Park”), raising a problem with
billing for follow-up visits that should have been included in global
surgery and laceration periods. (Pl. Ex. 107 & 108.) Relator claims that
Hawley had instructed her to contact Park if she had any questions.
(Salters Dep. at 194.) Also in 2007, Relator purportedly scheduled an
appointment

with

Irwin

to

discuss

a

supposed

lack

of

proper

documentation by doctors. (Salters Dep. at 25-26.) She states that when
she raised these concerns, Irwin was “stern” and told her that doctors
were responsible for their own documentation, and that billing would be
done “his way.” (Salters Dep. at 25-29.)
Relator also avers that in 2008, when one of AFC’s doctors lost his
privileges for upcoding, Irwin made her re-audit charts that Blue Cross
Blue Shield had audited and asked her to come up with a conclusion that
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. (Salters Dep. 20-30.) When Relator
reached the same result as Blue Cross Blue Shield, Relator reports that
Irwin “curse[d] [her] and was very blatantly ugly to [her].” (Salters Dep.
30.) Relator also allegedly reported concerns to Park about billing for
ultrasounds in the Vestavia clinic and sent an email to her supervisors
expressing concern that AFC had improperly billed for after-hours visits
that took place during its normal business hours. (Pl. Ex. 26 & 114.)
According to Relator, the issue was then corrected and AFC stopped this
billing practice. (Salters Dep. at 189). Relator purportedly spoke to
Johansen, Hawley and Irwin when she thought that AFC was improperly
billing for administration and injection codes and this practice was
corrected after the report. (Salters Dep. at 199-201). In March 2010,
Relator also expressed concern that unbundling was slowing down the
speed of processing payments. (Salters Dep. at 59-60.)
However, Relator alleges that the protected activity in this case was a
complaint she made regarding potential Stark Law violations. She met
with Johansen, Park, and Hawley in March 2010 to voice her concerns
that paying Dr. McCoy for lab referrals to AFC violated the Stark Law.
Johansen told her that he would take a look at this purported violation
after she sent him some further information. (Salters Dep. at 53,
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Johansen Dep. at 242-43). On May 18, 2010, Relator sent an e-mail to
Chief Operating Officer Tom Lazenby, Johansen, Park, and Hawley with a
detailed explanation of why she thought the Stark Law had been violated
and attached a copy of the statute to her e-mail. (Salters Dep. at 54-55,
Johansen Dep. at 242, Pl. Ex. 18.)
Relator claims that no one responded to her concern about the
violation. (Salters Dep. at 65.) However, Johansen claims that he did
speak to Relator about the problems she raised in her email. (Johansen
Dep. at 244-45.) Johansen also testified that he discussed the issue with
Hawley, and that they came to the conclusion that there was no improper
billing occurring. (Id. at 246-47.) Further, Kerr says he had no knowledge
of the alleged protected activity when he recommended that Relator be
terminated in late June 2010, six weeks after the e-mail was sent. (Kerr
Dep. at 75-6.) Yet, it is undisputed that Hawley, who made the final
decision to terminate Relator, was aware of the protected activity when
he made that decision. (Kerr Dep. at 78, Pl. Ex. 18.) Relator was
terminated on June 30, 2010 and filed this action on October 20, 2010.
C. Standard of Review
Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
Page 14 of 25

judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is
one that “might affect the outcome of the case.” Urquilla-Diaz v. Kaplan
Univ., 780 F. 3d 1039, 1049 (11th Cir. 2015). A dispute is genuine if “the
record taken as a whole could lead a rational trier of fact to find for the
nonmoving party.” Id. The trial judge should not weigh the evidence, but
determine whether there are any genuine issues of fact that should be
resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986).
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “considering all of the evidence
and the inferences it may yield in the light most favorable to the
nonmoving party.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d
1236, 1242 (11th Cir. 2013) (citing Ellis v. England, 432 F.3d 1321, 1325
(11th Cir. 2005)). In making a motion for summary judgment, “the moving
party has the burden of either negating an essential element of the
nonmoving party’s case or showing that there is no evidence to prove a
fact necessary to the nonmoving party’s case.” Id. Although the trial
courts must use caution when granting motions for summary judgment,
“[s]ummary judgment procedure is properly regarded not as a disfavored

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procedural shortcut, but rather as an integral part of the Federal Rules as
a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
D. Discussion
Relator brings a retaliation claim against AFC pursuant to the
whistleblower provision of the FCA.

She contends that she was fired

because she complained that AFC had violated Medicare regulations in
how it billed for medical services. Specifically, she was concerned that
AFC was billing for laboratory tests ordered by Dr. McCoy while he was
not actually present at the clinic.
The whistleblower provision of the FCA provides protection for those
who report violations of the statute. 31 U.S.C § 3720(h). Specifically, it
provides relief to an employee who was “discharged, demoted,
suspended, threatened, harassed, or in any other manner discriminated
against in the terms and conditions of employment because of lawful acts
done by the employee . . . in furtherance of an action under this section
or to stop . . . violations of this subchapter.” 31 U.S.C. § 3730(h)(1).
While the Eleventh Circuit has not yet ruled on the applicable standard
for finding retaliation in violation of the FCA, the Fifth Circuit and other
circuits have found that the McDonnell Douglas framework is applicable
to these actions. McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973);
Page 16 of 25

see, e.g., Diaz v. Kaplan Higher Educ., L.L.C., 820 F.3d 172, 175 & n.3
(5th Cir. 2016), Elkharwily v. Mayo Holding Co., 823 F.3d 462, 470 (8th
Cir. 2016), Harrington v. Aggregate Indus. Ne. Region, Inc., 668 F.3d 25,
31 (1st Cir. 2012). In order to bring a successful claim, a plaintiff must
first establish a prima facie case by showing “(1) that [s]he engaged in
protected activity, (2) that [s]he suffered an adverse employment action,
and (3) ‘that a causal link existed between the protected activity and the
adverse action.’” Diaz, 820 F.3d at 176 (quoting Ortiz v. City of San
Antonio Fire Dep’t, 806 F.3d 822, 827 (5th Cir. 2015)).
An internal complaint to a supervisor qualifies as a protected activity
if that complaint “allege[s] fraud on the government.” United States ex
rel. Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1304 (11th Cir. 2010)
(quoting McKenzie v. BellSouth Telecomms., Inc., 219 F.3d 508, 516 (6th
Cir. 2000)). An internal complaint sufficiently alleges fraud if the
allegations “are sufficient to support a reasonable conclusion that the
employer could have feared being reported to the government . . . or
sued in a qui tam action.” Id. In this case, Relator emailed AFC’s
president, detailing her concerns about AFC’s possible violation of the
Stark Law. That claimed violation would entitle Relator to file a qui tam
action against AFC, as indeed she did after her termination. 42 U.S.C. §
Page 17 of 25

1395nn. Therefore, Relator has shown that she engaged in a protected
activity. Relator has also shown that AFC terminated her, which qualifies
as an adverse employment action. Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008). Therefore, Relator has shown the first two elements of a
prima facie case for retaliation, and the only element at issue is
causation.
In order to demonstrate causation, a plaintiff “merely has to prove
that the protected activity and the negative employment action are not
completely unrelated.” E.E.O.C. v. Reichhold Chems., Inc., 988 F.2d
1564, 1571-72 (11th Cir. 1993).

This means that she “must at least

establish that the employer was actually aware of the protected
expression at the time the employer took adverse employment action
against the plaintiff.” Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.
1997). Close temporal proximity can also be effective to raise an
inference of causation, but if this is the only basis of causation, the
actions must be very close in time. Clark Cnty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001). In fact, the Eleventh Circuit held that a period of
three or four months is too long. Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007). However, the Eleventh Circuit has found

Page 18 of 25

that seven weeks is “sufficiently proximate to create a causal nexus.”
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
In the present case, Relator can establish that Hawley, who made the
ultimate decision to fire her, knew about the protected activity because
he was one of the recipients of her May 18, 2010 e-mail. (Pl. Ex. 18.)
However, Kerr, who recommended that Hawley fire Salters, testified that
he had no knowledge of the e-mail and he was not one of its recipients.
(Kerr Dep. at 75-76.) Therefore, Relator can only establish awareness of
the protected action for one of the individuals involved in her
termination. However, as the individual with awareness was the one who
ultimately made the decision to dismiss Relator, this is presumably
enough for a prima facie case of retaliation, especially when coupled
with the fact that Relator was fired just six weeks after her protected
activity.
As Salters has established a prima facie case of retaliation, the burden
shifts to AFC to “articulate some legitimate, nondiscriminatory reason”
for the adverse employment decision. McDonnell Douglas Corp., 411 U.S.
at 802. Once AFC meets this burden, it is up to Relator to show that the
reasons given are a pretext for illegal retaliation. Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 256 (1981). An employee can do this
Page 19 of 25

“either directly by persuading the court that a [retaliatory] reason more
likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Id. at 256.
However, “[p]rovided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason
head on, and rebut it, and that employee cannot succeed by simply
quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229
F.3d 1012, 1030 (11th Cir. 2000).
In this case, AFC has offered a legitimate nonretaliatory reason for
terminating Relator. AFC claims that Relator was fired because of her
poor management skills, the poor work environment she created in the
CPC, and ultimately her inability to acknowledge the situation and make
meaningful changes to the way she managed the CPC. AFC supports this
claim with a significant amount of evidence, mainly in the form of
testimony of those who worked with Relator and reported that they felt
threatened by her management style and did not think she was good at
her job.
The burden thus shifts to Relator to present evidence that would lead
a reasonable jury to conclude that the proferred legitimate reason is
either outweighed by a retaliatory reason, or not worthy of belief.
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Burdine, 450 U.S. at 256. First, Relator argues that she could not have
been fired for her poor job performance because her employment file
does not reflect AFC’s purported assessment of her behavior. According
to Relator, since her employment file does not contain any records of
discipline or even any negative evaluations, but instead only contains
records of promotions and bonuses, she could not have been fired for her
unsatisfactory performance.
She also provides evidence that one other employee (Pickens) was
disciplined and subjected to corrective action, which was documented in
her file. Even though Relator does provide evidence that discipline forms
and established AFC discipline procedures existed, the Employee
Handbook also clearly states that these disciplinary procedures did not
have to be followed in all cases. Further Pickens was not similarly
situated to Relator. Pickens did not hold the same position, and further,
there is no allegation that she engaged in similar misconduct. For
example, one of AFC’s complaints about Pickens was tardiness, which is
not similar to AFC’s complaints about Relator. Thus, the lack of negative
material in Relator’s file does not show that AFC’s proferred reasons for
terminating her are pretextual.

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Relator also cites to an opinion from the U.S. District Court for the
Middle District of Alabama for the proposition that she need only show
that “the negative treatment she suffered was motivated at least in part
by retaliation.” Mann v. Olsten Certified Healthcare Corp., 49 F. Supp.
2d 1307, 1316 (M.D. Ala. 1999) (emphasis added). However, that is not
the applicable standard in this case. The McDonnell Douglas standard
requires that the employee show that the employer’s proferred
legitimate reason was pretextual. Burdine, 450 U.S. at 248. An employee
who fails to show pretext will not meet her burden under McDonnell
Douglas, even if she raises possible retalitatory reasons for the
employment action. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515-16 (1993) (quoting Burdine, 450 U.S. at 253) (“a reason cannot be
proved to be a ‘pretext for discrimination’ unless it is shown both that
the reason was false, and that discrimination was the real reason”)
(emphasis in original).
Further, Relator herself testified that she asked other employees
about her performance after the issues were brought to her attention in
June 2010, and they confirmed that there were problems with her
management style. They told her that they did not trust her and felt that
she would not listen to them.

Therefore, Relator’s own testimony

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confirmed that she could reasonably have been terminated because
numerous employees had expressed genuine issues with her management
of the CPC.
Relator does not argue that she did not have management style
problems or that she did not do the things that AFC lists as reasons for
her termination. Instead, she alleges that she was unaware of these
problems until she met with Kerr and Hawley in late June 2010, and that
she was never given an opportunity to correct her management style
problems, because she was terminated almost immediately following the
meeting. AFC does not dispute that she did not have the chance to make
changes, but claims that management chose to fire her straightaway
because after the meeting, she attempted to retaliate against other
employees. Relator disputes that her conversations after the meeting
were retaliatory, claiming instead that they were attempts to learn how
to fix her management problems. After all, Relator was directed by
Hawley and Kerr to “talk to some . . . coworkers to see if they could
make suggestions.” (Salters Dep. at 155.) Relator claims that in speaking
to her co-workers, she was simply following these direct instructions, but
that AFC used this very compliance as a pretext to terminate her.

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AFC’s own June 11 memorandum about Relator’s conduct provides
further evidence of pretext. This memorandum by Kerr, who did not know
about Relator’s protected activity, recommended that Relator be
demoted and allowed to improve her performance. It did not suggest
immediate termination. Yet, between June 11 and June 30, Hawley—who
knew about Relator’s protected activity—decided to terminate Relator
without this demotion or opportunity for improvement. Kerr’s July 2
termination memorandum claims that he told Hawley to fire Relator.
However, this memorandum was not created until after the termination
occurred, and AFC does not dispute that Hawley made the ultimate
decision. These circumstances raise a jury question on the issue of
pretext.
AFC has provided ample evidence of a possible legitimate reason for
the termination. However, “the district court must view all evidence in
the light most favorable to the non-moving party, and resolve all
reasonable doubts about the facts in its favor.” Info. Sys. & Networks
Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). If a
nonmoving party—such as Relator in this case—“set[s] forth specific facts
showing that there is a genuine issue for trial” such that “a jury [could]
return a verdict for that party,” summary judgment cannot be granted.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1956) (quoting
Fed. R. Civ. P. 56). The Court cannot, at summary judgment “weigh the
evidence and determine the truth of the matter.” Id. at 249. A jury could
find that Relator’s quick termination with no opportunity to improve her
conduct and no gradual discipline is evidence of pretext. Therefore,
summary judgment as to Relator’s retaliation claim is due to be denied.
E. Conclusion
For the reasons stated above, Defendant’s motion for partial summary
judgment is due to be DENIED. A separate order consistent with this
opinion will be entered.
DONE and ORDERED this 15th day of December 2016.

_____________________________
L. Scott Coogler
United States District Judge

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