Schinnerer v. Wellstar Health, Inc.
Filing
68
OPINION AND ORDER granting in part and denying in part 52 Motion for Summary Judgment is GRANTED as to Count I and DENIED as to Count IV. Signed by Judge Thomas W. Thrash, Jr. on 02/07/2024. (jkb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
DAMION SCHINNERER,
Plaintiff,
v.
CIVIL ACTION FILE
NO. 1:22-CV-383-TWT
WELLSTAR HEALTH, INC.,
Defendant.
OPINION AND ORDER
This is a False Claims Act case. It is before the Court on the Defendant
Wellstar Health, Inc. (“Wellstar”)’s Motion for Summary Judgment [Doc. 52].
As explained below, the Defendant Wellstar’s Motion for Summary Judgment
[Doc. 52] is GRANTED in part and DENIED in part.
I.
Background 1
This case involves the alleged retaliatory termination of the Plaintiff
Damion Schinnerer’s employment in violation of the False Claims Act (“FCA”).
The Defendant Wellstar is a system of hospitals and other health care
facilities. (Def.’s Statement of Undisputed Material Facts ¶ 1). Wellstar is a
Medicare/Medicaid certified facility and accordingly must abide by the Centers
for Medicare and Medicaid Services’ (“CMS”) promulgated regulations and
The operative facts on the Motion for Summary Judgment are taken
from the parties’ Statements of Undisputed Material Facts and the responses
thereto. The Court will deem the parties’ factual assertions, where supported
by evidentiary citations, admitted unless the respondent makes a proper
objection under Local Rule 56.1(B).
1
related laws. (Pl.’s Statement of Undisputed Material Facts ¶ 9). 2 Wellstar
hired Schinnerer in May 2020 for the position of Assistant Vice President
(“AVP”) of Biomedical Engineering. (Def.’s Statement of Undisputed Material
Facts ¶ 2). In that position, Schinnerer was responsible for overseeing the
Biomedical Engineering (“Biomed”) Department, which involved working with
Wellstar’s Supply Chain Department to provide input regarding purchasing
biomedical equipment and engaging vendors to service biomedical equipment.
(Id. ¶ 3). Schinnerer also had responsibility for regulatory compliance. (Id. ¶ 4).
In his position, four managers reported to Schinnerer, including one that was
contracted. (Pl.’s Response to Def.’s Statement of Undisputed Material Facts
¶ 5). Those individuals included Curtis Ange, Chris Maier, Cecilia
Wellstar argues that the entirety of Schinnerer’s Statement of
Undisputed Material Facts should be disregarded because it does not comply
with Local Rule 56.1(B)’s requirement that the statement of facts be “concise.”
(Def.’s Response to Pl.’s Statement of Undisputed Material Facts, at 1-3). In
support of its position, Wellstar relies on Dinkins v. Leavitt, 2007 U.S. Dist
LEXIS 102709, at *9 (N.D. Ga. Dec. 17, 2007) report and recommendation
adopted, Dinkins v. Leavitt Secy, 2008 U.S. Dist. LEXIS 1113 (N.D. Ga. Jan.
11, 2008). The court there disregarded a statement of facts by a pro se plaintiff
who filed a 94-page document in response to the defendant’s 25 statements of
fact. The 94-page document was in narrative form, did not have individually
numbered paragraphs, and never responded to the defendant’s statement of
facts. Id. at *7-9. The statement of facts here is 42 pages, contains numerated
paragraphs, and need not address Wellstar’s assertions as it is not a response
to its statement of facts. The Court thus does not find that Dinkins provides
support for disregarding the entire statement of facts. However, the Court
agrees with Wellstar that a considerable number of statements in Schinnerer’s
Additional Statements of Material Facts are improper legal conclusions or
immaterial, inadmissible, and/or impermissibly vague statements of fact. The
Court will disregard all such statements.
2
2
Byers-Green, and Andre Anderson. (Id.). When Schinnerer was hired, he
reported to Joe Braud, the Chief Technology Officer. (Def.’s Statement of
Undisputed Material Facts ¶ 7). In 2021, the leadership of the Biomed
Department was transitioning from Braud to Sandra Lucius. (Pl.’s Statement
of Undisputed Material Facts ¶ 3). Schinnerer actively worked at Wellstar
until May 18, 2021, when he was put on administrative leave. (Id. ¶¶ 191, 195).
Then, his employment was officially terminated on October 1, 2021. (Id. ¶ 202).
Schinnerer contends that on several occasions during his employment
at Wellstar, Wellstar did not select vendors based on competitive prices. (Id.
¶¶ 75, 77, 92, 98, 100, 120). Schinnerer further asserts that overspending
directly impacts the cost of care. (Id. ¶ 97). However, Schinnerer does not know
how Wellstar charges the government for the services it renders. (Def.’s
Response to Pl.’s Statement of Undisputed Material Facts ¶ 97). Schinnerer
reported his concerns about Wellstar overpaying for medical equipment to
Braud, who told Schinnerer that either he needed to be able to prove it, he
could call the ethics compliance hotline, or he should let it go. (Id. ¶ 148;
Schinnerer Dep. at 29:12-20).
Schinnerer then called the ethics compliance hotline on April 20, 2021.
(Pl.’s Statement of Undisputed Material Facts ¶¶ 148-49; Schinnerer Dep. at
29:17-20). When he initially called, he did so anonymously. (Pl.’s Statement of
Undisputed Material Facts ¶ 150). Because the complaint involved the
inappropriate
conduct
of
senior
leadership,
3
the
compliance
analyst
immediately alerted Roshunda Drummond-Dye, the Vice President of
Compliance and Chief Privacy Officer. (Id. ¶ 151). Within two weeks of
receiving the complaint, Drummond-Dye informed Danyale Ziglor, Vice
President of Human Resources, about the still-anonymous complaint. (Def.’s
Response to Pl.’s Statement of Undisputed Material Facts ¶ 152).
In response to the complaint’s allegations, Drummond-Dye interviewed
individuals within the Supply Chain Department who had direct responsibility
for the vendor selection process. (Pl.’s Statement of Undisputed Material Facts
¶ 174; Doc. 63-1 (“Exhibits to Wellstar Deps.”), Ex. 10, at 3). Several
interviewees discussed attempts or instances of circumventing the vendor
selection process. (Pl.’s Response to Def.’s Statement of Undisputed Material
Facts ¶ 52; Exs. to Wellstar Deps., Ex. 10 at 2). Compliance and Human
Resources met on June 14, 2021 to wrap up the investigation. (Def.’s Statement
of Undisputed Material Facts ¶ 52; Exs. to Wellstar Deps., Ex. 10 at 3). Based
on the interviews and a review of relevant policies and documents, they
concluded that there was no evidence to corroborate the allegations of the
complaint, even though improvements could be made to the process. (Id.). At
this point in time, Compliance and Human Resources did not know who
submitted the complaint. (See Def.’s Statement of Undisputed Material Facts
¶¶ 51-53). However, Braud became aware in late May 2021 that Schinnerer
submitted the complaint. (Pl.’s Statement of Undisputed Material Facts ¶ 154).
4
Then, on June 28, 2021, Schinnerer called Drummond-Dye, informed
her that he was the one who submitted the complaint, and gave her additional
information. (Def.’s Statement of Undisputed Material Facts ¶ 55; Exs. to
Wellstar Deps., Ex. 10 at 3). Drummon-Dye continued investigating the
allegations with the new information, but before that investigation was
completed, Wellstar received a demand letter from Schinnerer’s attorney on
July 28, 2021. (Def.’s Statement of Undisputed Material Facts ¶ 75; Exs. to
Wellstar Deps., Ex. 10 at 3-5). Since then, Wellstar’s legal department has been
directing the compliance investigation and views it as protected by
attorney-client privilege. (Def.’s Statement of Undisputed Material Fact ¶ 76;
Drummond-Dye Decl. ¶¶ 11-12).
Wellstar asserts that Schinnerer was mistreating other employees at
the same time these events were taking place. During the months after
Schinnerer began working for Wellstar, Braud received reports of Schinnerer
treating team members in a disrespectful and abrasive manner. (Def.’s
Statement of Undisputed Material Fact ¶ 8). 3 In response, Braud spoke with
Schinnerer several times about engaging with team members and vendors in
a respectful and collaborative way. (Id. ¶ 9). Braud never provided a written
warning to Schinnerer about his behavior. (Def.’s Response to Pl.’s Statement
of Undisputed Material Facts ¶ 221). After his discussions with Schinnerer,
Wellstar’s numeration in its Statement of Undisputed Material Facts
repeats paragraph 8. This citation refers to the first paragraph 8.
5
3
Braud noticed some improvement in Schinnerer’s interactions with team
members, but Schinnerer would still revert back to his abrasive approach.
(Def.’s Statement of Undisputed Material Facts ¶ 10). Braud discussed with
Hank Capps, the Executive Vice President and Chief Information and Digital
Officer, the need to address Schinnerer’s abrasive engagement style through a
performance improvement plan. (Id. ¶ 18; Capps Decl. ¶ 2).
On or about May 14, 2021, Braud called Director of Human Resources
Donna Guydon to discuss Schinnerer, and Guydon told Braun that she was
already investigating an incident involving Schinnerer and a Biomed employee
named Lanard Harris. (Def.’s Statement of Undisputed Material Facts
¶¶ 19-20). Schinnerer had reported Harris to Human Resources because
Harris used profanity towards Schinnerer during a virtual meeting. (Id. ¶ 21).
In addressing the report regarding Harris, Guydon interviewed several
Biomed team members who confirmed that Harris used profanity but also
stated that they understood Harris’s frustration given Schinnerer’s
intimidating and stress-inducing management style. (Id. ¶¶ 22-23). Harris’s
employment was terminated because of the inappropriate conduct towards
Schinnerer. (Id. ¶ 27). Braud, Guydon, and Ziglor decided that, based on what
was uncovered during the Harris investigation, Schinnerer’s management
style needed to be further investigated. (Id. ¶ 28). 4 Accordingly, Guydon
Schinnerer disputes this fact in his Response to Defendant’s
Statement of Material Facts. However, Schinnerer simply provides a string of
6
4
interviewed several Biomed team members who regularly interacted with
Schinnerer and reported issues with his abrasiveness. (Id. ¶ 30). Guydon,
Ziglor, and Braud assert that they put Schinnerer on administrative leave so
the Biomed team could speak freely about Schinnerer’s behavior, and they
contend that they terminated his employment based on the results of that
investigation. (Id. ¶¶ 29, 41).
At the time Schinnerer’s employment was terminated on October 1,
2021, Wellstar used a third-party company called WageWorks to send COBRA
notifications. (Id. ¶ 87). A WageWorks employee with access to WageWorks’s
corporate records stated that the company sent Schinnerer his COBRA
notification to 995 Tannery Court, Marietta, Georgia 30064 on October 12,
2021. (Id. ¶ 88; Fraser Decl. ¶¶ 3, 7). However, prior to his termination,
Schinnerer sold his house at that address and had all mail forwarded to his
parent’s address in Fort Worth, Texas. (Def.’s Statement of Undisputed
Material Facts ¶ 89). While he was on administrative leave, Schinnerer did not
have access to the Wellstar system in order to change his listed address. (Pl.’s
Statement of Undisputed Material Facts ¶ 265). Schinnerer called Human
Resources to provide his new address around the end of August 2021. (Id.
¶¶ 265-66). Schinnerer did not receive his COBRA letter until months after his
citations and does not explain what parts of this fact he is disputing or on what
basis. Because of this failure to make a proper objection, this fact is deemed
admitted under Local Rule 56.1(B)(2)(a)(2). Other responses with the same
deficiencies will also be deemed admitted.
7
employment was terminated. (Id. ¶ 267; Def.’s Statement of Undisputed
Material Facts ¶ 92).
Based on the foregoing facts, Schinnerer filed this lawsuit against
Wellstar. After Wellstar’s Motion to Dismiss was partially granted, two counts
remain. First, Schinnerer asserts that Wellstar terminated his employment in
retaliation for engaging in activity protected by the FCA. Second, Schinnerer
argues that Wellstar failed to timely notify Schinnerer of his COBRA rights.
Wellstar now moves for summary judgment on both counts.
II.
Summary
judgment
Legal Standard
is
appropriate
only
when
the
pleadings,
depositions, and affidavits submitted by the parties show that no genuine issue
of material fact exists, and that the movant is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a), (c). The court should view the evidence and draw
any inferences in the light most favorable to the nonmovant. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 158-59 (1970). The party seeking summary
judgment must first identify grounds that show the absence of a genuine issue
of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The
burden then shifts to the nonmovant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact
exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
8
III.
Discussion
Wellstar contends that summary judgment should be granted on the
FCA claim because he cannot show (1) that he engaged in any activity
protected by the FCA, (2) that there is any causal connection between any
protected activity and the decision to terminate his employment, and (3) that
Wellstar’s stated reason for terminating his employment was pretextual.
(Def.’s Br. in Supp. of Mot. for Summ. J., at 7-22). Wellstar also argues that
the record does not support emotional distress damages for Schinnerer’s FCA
claim. (Id., at 22-23). With respect to Schinnerer’s COBRA claim, Wellstar
asserts that summary judgment is proper because Wellstar used reasonably
calculated measures to ensure receipt of Schinnerer’s COBRA notification. (Id.,
at 23-24). The Court considers these arguments in turn.
A. FCA Claim
The False Claims Act authorizes a private citizen, acting on behalf of
the government, to file a civil action against any person who “knowingly
presents, or causes to be presented, a false or fraudulent claim for payment or
approval” or who “knowingly makes, uses, or causes to be made or used, a false
record or statement material to a false or fraudulent claim[.]” 31 U.S.C.
§ 3729(a)(1)(A)-(B). The False Claims Act also allows employees to seek relief
from an employer where the employee “is discharged, demoted, suspended,
threatened, harassed, or in any other manner discriminated against in the
terms and conditions of employment because of” protected activity, or “lawful
9
acts done by the employee . . . in furtherance of an action under this section or
other efforts to stop [one] or more violations” of the FCA. 31 U.S.C. § 3730(h)(1).
An FCA retaliation plaintiff has the initial burden to prove its prima
facie case by establishing that (1) they engaged in a statutorily protected
activity, (2) an adverse employment action occurred, and (3) the adverse action
was causally related to the plaintiff’s protected activities. Simon ex rel. Fla.
Rehab. Assocs., PLLC v. Healthsouth of Sarasota L.P., 2022 WL 3910607, at
*5 (11th Cir. Aug. 31, 2022) (citation omitted). Then, “[i]f a defendant provides
a legitimate, nondiscriminatory reason for termination in response to the
plaintiff's prima facie showing, the plaintiff bears the burden of persuasion
that the proffered reasons are pre-textual.” United States ex rel. Aquino v.
Univ. of Miami, 2018 WL 3814517, at *6 (S.D. Fla. Aug. 10, 2018) (citations
omitted).
Even assuming that Schinnerer engaged in a protected activity,
summary judgment is warranted because there is insufficient evidence of
causation or pretext. In opposing Wellstar’s Motion for Summary Judgment,
Schinnerer relies on the temporal proximity between Wellstar’s knowledge
that he complained about the vendor selection process and him being placed
on administrative leave and ultimately fired. (Pl.’s Br. in Opp’n to Mot. for
Summ. J., at 12-15). Wellstar argues that Schinnerer’s behavior towards his
coworkers counts as an intervening act of misconduct that defeats any
inference that can be discerned by that temporal proximity. (Def.’s Br. in Supp.
10
of Mot. for Summ. J., at 17-20). The Court agrees with Wellstar.
Under Eleventh Circuit precedent, “the but-for causation standard
applies to False Claims Act retaliation claims.” Nesbitt v. Candler Cnty., 945
F.3d 1355, 1360 (11th Cir. 2020) (citations omitted). “The general rule is that
close temporal proximity between the employee's protected conduct and the
adverse employment action is sufficient circumstantial evidence to create a
genuine issue of material fact of a causal connection.” Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). However, “close temporal
proximity between two events, standing alone, is not a panacea, absent any
other evidence that the employment decision was causally related to the
protected activity.” Hankins v. AirTran Airways, Inc., 237 F. App’x 513, 520
(11th Cir. 2007). For example, “there is no causal connection between a
protected act and an adverse action, where the adverse action was caused by
intervening act of misconduct.” Brisk v. Shoreline Found., Inc., 654 F. App’x
415, 417 (11th Cir. 2016) (citation omitted). That intervening act of misconduct
can occur before or after the plaintiff engaged in the alleged protected activity.
Nelson v. Americold Logistics, LLC, 2020 WL 1809744, at *4 (N.D. Ga. Feb. 11,
2020), report and recommendation adopted, 2020 WL 1799945 (N.D. Ga.
March 4, 2020) (collecting cases) (“In any event, it simply does not matter if
Plaintiff engaged in protected conduct the day before or the day after his
alleged misconduct. Either way, the misconduct defeats the inference of
causation created by the temporal proximity between the protected conduct
11
and Plaintiff's termination.” (footnote omitted)).
Additionally, to demonstrate that Wellstar’s stated explanation is
pretextual, the plaintiff must show “that there are such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Gray v. City of Jacksonville,
Fla., 492 F. App’x 1, 4 (11th Cir. 2012) (quotation marks and citation omitted).
Furthermore, “[p]retext is only proven if it is shown both that the reason was
false, and that…retaliation was the real reason behind the challenged action.”
Brisk, 654 F. App’x at 417 (citation omitted).
Here, Wellstar’s stated basis for terminating Schinnerer’s employment
is as follows: “Although Damion has been repeatedly made aware over the last
12 months of concerns about his abrasive interactions with leadership, team
members, and vendors, he continued to engage in such problematic behavior.”
(Exs. to Wellstar Deps., Ex. 14 at 4). Under Wellstar’s employment policies,
“[m]istreatment of a patient, visitor, volunteer or other employee” is a basis for
termination. (Id., Ex. 23 at 4). If Wellstar’s belief that Schinnerer violated its
policies was in good faith, the Court cannot infer that Schinnerer was
terminated due to his complaints about the vendor selection process. See
EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000) (affirming
grant of summary judgment to employer who discharged employee based on
good faith belief that she lied in an internal investigation).
12
Schinnerer provides several arguments as to why Wellstar’s explanation
of his termination was pretextual and not in good faith. First, he argues that
he “was simply trying to do his job, but employees he worked with did not want
to be critiqued and were not receptive to change.” (Pl.’s Br. in Opp’n to Mot. for
Summ. J., at 17). But as Wellstar notes, “that Plaintiff was ‘trying to do his job’
does not require Defendant to allow him to mistreat other employees, much
less suggest Defendant’s basis for terminating his employment is false.” (Reply
Br. in Supp. of Mot. for Summ. J., at 11). Moreover, to the extent that there
were differing views on whose attitude was to blame, “the employer can
lawfully make a choice between the conflicting versions—that is, to accept one
as true and to reject one as fictitious—at least, as long as the choice is an honest
choice.” Total Sys. Servs., Inc., 221 F.3d at 1176. As explained below,
Schinnerer provides no reason to think that Wellstar’s decision to believe his
coworkers was dishonest.
Second, Schinnerer asserts that there were several employees who did
not have issues with Schinnerer’s behavior and Wellstar refused to interview
them during its investigation. (Pl.’s Br. in Opp’n to Mot. for Summ. J., at 17-18,
21). Schinnerer specifically points to a statement by Ziglor that Human
Resources did not interview individuals provided by Schinnerer because their
statements would not have changed anything (Id., at 21; Pl.’s Br. in Opp’n to
Mot. for Summ. J., Ex. B (“Ziglor Dep.”) at 52:21-53:12). However, Ziglor
explained that “interviewing any additional people would not have changed the
13
fact of what these individuals saw, heard, or witnessed working with Damion
or under his leadership.” (Ziglor Dep. at 53:7-10). “So he could have been a good
guy to them, but he was abrasive, rude, disruptive, to other people.” (Id. at
53:10-12). Schinnerer points to nothing in Wellstar’s employment policies that
requires Wellstar to prove that an employee mistreated all other employees
before discharging the offending employee. In fact, the policy is written in the
singular, indicating that the mistreatment of any employee may lead to
termination. (Exs. to Wellstar Deps., Ex. 23 at 4) (“Mistreatment of a patient,
visitor, volunteer, or other employee”). Thus, the Court cannot infer from the
refusal to interview the individuals Schinnerer provided that the investigation
was done in bad faith. 5
Schinnerer’s third basis for arguing that he was not truly discharged for
misconduct is a draft termination notice written in June 2021. (Pl.’s Br. in
Opp’n to Mot. for Summ. J., at 18-20). Schinnerer asserts that “Braud prepared
the first draft of the termination form specifically stating that Plaintiff’s
compliance complaints were the problem” and that “the evidence shows
Plaintiff was only being ‘abrasive’ when complaining about compliance issues.”
At bottom, Schinnerer’s contention is that the investigation into his
behavior would have included these interviews if it were not a sham. However,
this presumption is unfounded. For example, Harris was discharged for using
profanity towards Schinnerer (and on this record did not engage in any
protected activity). It stretches reason to presume that, if asked, Human
Resources would have interviewed every person that Harris did not use
profanity towards prior to terminating Harris’s employment.
14
5
(Id. at 18-19). This mischaracterizes the evidence. The stated “performance
deficiency” on the draft termination notice is:
Abrasive interactions with leadership, team members, and
vendors. Abusive behavior toward Biomed team members
resulting in loss of trust and performance deficiencies within his
team. Inability to drive constructive outcomes in managerial
situations requiring
cross-functional collaboration and
engagement. Failure to properly execute duties related to AVP
position – violation of Policy #3024. 6
(Exs. to Wellstar Deps., Ex. 16 at 1). Nowhere in that description does it
“specifically stat[e] that Plaintiff’s compliance complaints were the problem,”
and the stated deficiencies are broader than complaints about compliance
issues. (Pl.’s Br. in Opp’n to Mot. for Summ. J., at 18).
The only mention of Schinnerer’s complaints is under the “specific
details” section of the draft. (Exs. to Wellstar Deps., Ex. 16 at 1). However, the
context of the document shows that this was not the problem with his
employment. The paragraph discussing the complaints comes directly after a
paragraph discussing Schinnerer’s “deep knowledge” of the field and states
that he “frequently questioned the competency and ethics of our Strategic
Sourcing team.” (Id.). It goes on to say that “[c]ertain elements he has called
out…are valid and we have worked to address these issues.” (Id.). “However,
no evidence has been provided to support ethical or legal deficiencies regarding
the actions of the Sourcing team,” even though Schinnerer “cited discussions
Policy #3024 is the Employee Corrective Action policy, which outlines
discipline for various types of actions. (Exs. to Wellstar Deps., Ex. 23).
15
6
with various anonymous sources.” (Id.). No reasonable inference can be drawn
from these statements to demonstrate that his compliance complaints were the
real reason he was discharged. Likewise, the decision to remove that language
does not raise a reasonable inference of pretext or bad faith. The termination
notice that was ultimately sent to Schinnerer on October 1, 2021, was
significantly shorter than the draft and eliminated many details that were
originally included. (Compare id. at 1-2 with Exs. to Wellstar Deps., Ex. 14 at
4). Thus, one cannot reasonably infer from the deletion of one particular detail
(i.e., the compliance complaints) that it was part of an effort to cover up the
real reason for terminating Schinnerer’s employment.
Fourth, Schinnerer points to statements made by Ziglor and Braud to
prove retaliatory intent. (Pl.’s Br. in Opp’n to Mot. for Summ. J., at 19-20).
Ziglor stated in her deposition that part of the reason why there was a delay
between putting Schinnerer on administrative leave and terminating his
employment was the compliance investigation. (Ziglor Dep. at 12:12-22).
Schinnerer argues that this shows that the decision to discharge him depended
on whether his complaints were substantiated. (Pl.’s Br. in Opp’n to Mot. for
Summ. J., at 19 n. 10). Yet, Ziglor went on to testify that Human Resources
eventually terminated Schinnerer without knowing the results of the
compliance investigation. (Ziglor Dep. at 14:10-16). As such, his termination
could not have depended on the results of the investigation.
16
Schinnerer also asserts that Braud told him that “if you can't prove, you
know, a crime is being committed, you need to let it go.” (Pl.’s Br. in Opp’n to
Mot. for Summ. J., at 20). Schinnerer omits from his brief the rest of what
Braud told Schinnerer: “if you think it's that big of a concern, you need to call
the ethics line.” (Schinnerer Dep. at 29:18-19). Far from demonstrating
retaliatory intent, this statement shows that Braud encouraged Schinnerer to
call the ethics line if Schinnerer believed what he was told. Thus, these
statements are insufficient to create a genuine dispute of material fact.
Fifth, Schinnerer contends that Wellstar’s bad faith is shown by its offer
to give him a severance payment for resigning but revoking that offer if he
insisted on further investigation. (Pl.’s Br. in Opp’n to Mot. for Summ. J., at
20-21). Schinnerer’s contention assumes that if Wellstar truly believed
Schinnerer’s actions warranted termination then it would not have encouraged
him to resign. (Id.). However, this assumption is unreasonable. There are
multiple possible reasons for Wellstar offering Schinnerer severance pay to
resign, such as saving resources by forgoing further investigation. 7 Schinnerer
provides no factual basis from which a jury could reasonably infer that
Wellstar’s offer to let Schinnerer resign for a week’s worth of pay meant that
it was trying to strong-arm Schinnerer into accepting an unwarranted adverse
employment action. Schinnerer’s only attempt to do so is Braud’s statement
In that same vein, Schinnerer presumably does not believe that all
plea agreement offers arise from inherently wrongful prosecution.
17
7
that further investigation would not prevent Schinnerer from being fired. (Id.
at 20). This does not create a reasonable inference of bad faith since Braud
knew the findings of the initial investigation and could opine that the already
available evidence demonstrated a violation of Wellstar’s policies warranting
termination. Therefore, the offer to let Schinnerer resign does not create a
genuine issue of material fact requiring denial of summary judgment.
Sixth, Schinnerer asserts that Wellstar failed to follow its disciplinary
policies, thereby evincing retaliatory intent. (Id. at 21-22). More specifically,
Schinnerer states that Wellstar failed to comply with its progressive discipline
process. (Id.). Schinnerer is correct that “an employer's deviation from its own
standard procedures may serve as evidence of pretext.” Hurlbert v. St. Mary’s
Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006) (citations omitted).
However, the Court can discern no deviation from Wellstar’s standard
procedures. Schinnerer’s contention is premised on the fact that his behavior
falls into less serious “Group I” violations. However, mistreatment of another
employee is listed as a “Group II” violation, which does not require progressive
discipline. (Exs. to Wellstar Deps., Ex. 23 at 4). The record shows an example
of another employee being fired for mistreating another employee. Harris—
who appears to have engaged in no protected activity—used profanity towards
Schinnerer and was terminated without progressive discipline. Schinnerer
attempts to distinguish Harris’s termination by stating that he never used
profanity towards a supervisor. (Pl.’s Br. in Opp’n to Mot. for Summ. J., at 22).
18
However, using profanity towards a supervisor is not the only way a person
can mistreat a fellow employee. This distinction therefore does not show that
mistreating another employee always requires progressive discipline under
Wellstar’s policy. Accordingly, the fact that Schinnerer never received
progressive discipline does not establish pretext.
Finally, Schinnerer provides Michael McCullough and Denise Adams as
comparators that were not discharged for their similar behavior. A plaintiff
may show that a violation of a work rule was a pretextual basis for an adverse
employment action if the plaintiff submits evidence that other employees who
did not engage in protected activity were not treated similarly. See Damon v.
Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999).
For such a comparison to be made, “a plaintiff and her comparators must be
sufficiently similar, in an objective sense, that they cannot reasonably be
distinguished.” Lewis v. City of Union City, Ga., 918 F.3d 1213, 1228 (11th Cir.
2019) (en banc) (quotation marks and citation omitted). A similarly situated
comparator (1) “will have engaged in the same basic conduct (or misconduct)
as the plaintiff,” (2) “will have been subject to the same employment policy,
guideline, or rule as the plaintiff,” (3) “will ordinarily (although not invariably)
have been under the jurisdiction of the same supervisor as the plaintiff,” and
(4) “will share the plaintiff's employment or disciplinary history.” Id. at
1227-28 (citations omitted).
19
McCullough and Adams do not meet these requirements. While they do
share the same employment policies, they worked in different departments and
reported to different supervisors. (Def.’s Br. in Supp. of Mot. to Dismiss, at 15).
Moreover, the misconduct they are accused of is vastly different. While Adams
was described as “passive-aggressive” and McCullough was described as
“harsh” and “not fully listen[ing] or respect[ing] the voices of those who
reported to him,” Ange—one of Schinnerer’s subordinates—said Schinnerer
treated team members as “subhuman.” (Braud Dep. at 58:9-60:10;
Drummond-Dye Dep. at 48:18-49:4; Guydon Decl. ¶ 8). 8 Ange also stated that
Schinnerer berated him on several occasions and did not report it due to
intimidation and fear of retaliation by Schinnerer. (Def.’s Statement of
Undisputed Material Facts ¶¶ 39-40). Several other Wellstar employees who
interacted with Schinnerer told Human Resources that Schinnerer did not
collaborate or get along with anyone, operated like a drill sergeant which
caused team morale to be low, and was disagreeable, hostile, abrasive,
aggressive, confrontational, and condescending. (Id. ¶¶ 31-35). In the Court’s
view, the complaints about McCullough and Adams are not nearly as severe or
Schinnerer objects to the use of quotes provided by Biomed employees
to Guydon during interviews as inadmissible hearsay. (See, e.g., Pl.’s Response
to Def.’s Statement of Undisputed Material Facts ¶ 26). However, since
Wellstar need only show it had a good faith belief that Schinnerer engaged in
misconduct and need not prove that he did in fact engage in misconduct, these
statements are not offered for the truth of the matter asserted. Rather, the
statements demonstrate the effect on the listener.
20
8
pervasive as these complaints are.
Moreover,
Schinnerer
was
only
terminated
after
the
Harris
investigation, when the full breadth of allegations came to light. Braud
responded to the initial complaints about his harshness (which more closely
resembled the complaints about McCullough and Adams) by talking to
Schinnerer about the issue without taking formal action. (Id. ¶ 9). Schinnerer
was treated similarly to McCullough and Adams until the complaints against
him became significantly more serious and widespread. The Court therefore
cannot conclude that Schinnerer was treated differently from any similarly
situated comparators. Since none of Schinnerer’s arguments provide a
reasonable basis to conclude that Wellstar’s non-retaliatory basis for
terminating his employment was in bad faith or pretextual, the Court grants
summary judgment to Wellstar on Count I. 9
B. COBRA Claim
Schinnerer also alleges that Wellstar did not timely send him his
COBRA rights notification as required under 29 U.S.C. § 1166. (Second Am.
Compl. ¶¶ 69-76). Regulations require that “the plan administrator shall use
measures reasonably calculated to ensure actual receipt of the material by plan
participants, beneficiaries and other specified individuals.” 29 C.F.R.
Because the Court concludes that summary judgment is warranted on
the entire claim, the Court does not reach the issue of whether Schinnerer
could seek emotional distress damages.
21
9
§ 2520.104b-1(b)(1). Wellstar asserts that it has done this because its
third-party company timely sent the COBRA notifications through first-class
mail. (Def.’s Br. in Supp. of Mot. for Summ. J., at 23-24; Fraser Decl. ¶ 6). The
Court disagrees.
Wellstar relies on DeBene v. BayCare Health Sys., Inc., 688 F. App’x
831, 838-40 (11th Cir. 2017) to support its position. There, the court found that
the defendant-employer satisfied the notice requirement when there was
undisputed evidence that it mailed the plaintiff a COBRA letter and when
other intended recipients of letters mailed on the same day received the letters.
While Schinnerer does not provide any evidence to dispute the fact that
Wellstar sent the COBRA letter on October 12, 2021, this case is
distinguishable from DeBene.
In DeBene, there was no issue of whether the employer mailed the letter
to the wrong address. Here, after he was discharged, Schinnerer moved from
his Marietta, Georgia address to his parents’ Fort Worth, Texas address.
Schinnerer did not have access to Wellstar’s Human Resources system to
update his address and was expected to notify his Human Resources
representative directly. (Pl.’s Statement of Undisputed Material Facts ¶ 263).
Schinnerer stated in his deposition that he notified Guydon of his new address
around the end of August 2021. (Id. ¶ 266). Wellstar does not provide any
evidence contradicting that statement. (Def.’s Response to Pl.’s Statement of
Undisputed Material Facts ¶ 266). Yet, Schinnerer’s COBRA letter was still
22
sent to his Marietta, Georgia address on October 12, 2021. (Def.’s Statement of
Undisputed Material Facts ¶ 88). The Court cannot find as a matter of law that
mailing the COBRA letter to the wrong address after being informed of the
correct address months beforehand counts as “reasonably calculated to ensure
actual receipt of the material.” 29 C.F.R. § 2520.104b-1(b)(1). Therefore,
summary judgment as to Count IV is denied.
C. Conclusion
For the foregoing reasons, the Defendant Wellstar’s Motion for
Summary Judgment [Doc. 52] is GRANTED as to Count I and DENIED as to
Count IV.
SO ORDERED, this
7th
day of February, 2024.
_________________________ ___
THOMAS W. THRASH, JR.
United States District Judge
23
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