Moss v. University Village Retirement Community
Filing
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OPINION AND ORDER by Judge John E Dowdell denying Defendant's Motion for Summary Judgment (Doc. 29). ; setting/resetting deadline(s)/hearing(s): ( Proposed Pretrial Order due by 1/28/2015, Pretrial Conference set for 2/4/2015 at 09:30 AM before Judge John E Dowdell, Jury Trial set for 2/17/2015 at 09:30 AM before Judge John E Dowdell); denying 29 Motion for Summary Judgment (Re: State Court Petition/Complaint ) (SAS, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
TRACIE MOSS,
)
)
Plaintiff,
)
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v.
)
)
UNIVERSITY VILLAGE RETIREMENT )
COMMUNITY,
)
)
Defendant.
)
Case No. 12-CV-307-JED-PJC
OPINION AND ORDER
I.
Background
Plaintiff, Tracie Moss, worked as a Nursing Home Health Care Administrator for the
defendant, University Village Retirement Community (UVRC) for over three years. UVRC
provides seniors with independent and assisted living residential options. Ms. Moss took a leave
of absence from October 2011 to January 9, 2012, to care for her newborn child. Shortly after
her return to work, Moss learned that UVRC personnel had failed to report to the State of
Oklahoma a resident’s allegation of sexual abuse by a UVRC staff member, Michael Knighten,
who was a nurse’s aide. Pursuant to a state regulatory rule, which implements the state Nursing
Home Care Act, facilities such as UVRC are required to report to the Oklahoma Department of
Health allegations and incidents of resident abuse or neglect. Okla. Admin. Code 310:675-7-5.1.
“All reports to the Department shall be made by telephone or facsimile within twenty-four (24)
hours of the reportable incident unless otherwise noted.” Id., § (a). Although the allegation of
sexual abuse was received by UVRC on January 4, 2012 -- five days prior to Moss’s return from
leave -- UVRC had not made the required report as required by the regulation. Moss thus
completed an investigation and then reported the allegation to the Department of Health on
January 13, 2012.
Eleven days after Moss’s report of the resident’s allegation of sexual abuse to the
Department of Health, which was fifteen days following her return from FMLA leave, Moss’s
employment was abruptly terminated.
Moss’s prior performance reviews had been mostly
positive and she was consistently rated as having met or exceeded expectations. UVRC’s
documentation for the reasons for termination identified the “current subject / problem” for
which Moss’s employment was terminated as “[l]ack of fit in the UV[RC] culture....failure to
display actions that support our Mission Statement.” (Doc. 33-3). The same document lists
“previous counselings” allegedly provided to Moss, including two from 2010, which Moss
disputes occurred. Vanessa Neal was the Vice President and Executive Director of UVRC at and
following the relevant time of Moss’s employment at UVRC. Moss asserts that the underlying
documents produced by UVRC as back up for the alleged “previous counselings” were
fabricated by Neal following the initiation of this litigation, as Moss was not counseled as
alleged and the underlying documents are not signed either by Human Resources staff or by
Moss, as such forms usually are. (See Doc. 33-16, 33-17). Neal admitted that Moss had never
been disciplined before she was terminated. (Doc. 33-4 at 8, Depo. p. 78).
Moss sued UVRC in state court and asserted claims for wrongful termination in violation
of public policy pursuant to Burk v. K-Mart Corp., 770 P.2d 24 (Okla. 1989) (Burk claim) and
unlawful retaliation under the Family and Medical Leave Act (FMLA). UVRC removed the
action to federal court. UVRC now seeks summary judgment on Moss’s claims. (Doc. 29). For
the reasons discussed herein, material facts are genuinely disputed, precluding summary
judgment.
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II.
Summary Judgment Standards
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 judgment as a matter of law.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “By its terms, [the Rule 56] standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original). “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The
courts thus determine “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Id. at 251-52. The non-movant’s evidence is taken as true, and all reasonable inferences are to
be drawn in the non-movant’s favor. Id. at 255. The Court may not weigh the evidence or credit
the evidence of the party seeking summary judgment while ignoring evidence offered by the
non-movant. Tolan v. Cotton, __ U.S. __, 134 S. Ct. 1861, 1868 (2014) (per curiam).
III.
Discussion
A.
Public Policy Burk Claim
UVRC first argues that Moss may not maintain a Burk claim based upon a rule provided
by the Oklahoma Administrative Code. (Doc. 29 at 12-14). According to UVRC, a Burk claim
may only be maintained based upon “constitutional, statutory, or decisional law,” rather than
regulatory rules. (Id.).
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As Moss points out in response, in Burk itself, the Oklahoma Supreme Court cited with
approval other jurisdictions which held “that an employer may be held liable where his discharge
of an employee violates a clear mandate of public policy” such as when “‘the employer’s
conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or
scheme’” and “‘[p]rior judicial decisions may also establish the relevant public policy.’” Burk,
770 P.2d at 29 (emphasis added) (quoting Parnar v. Americana Hotels, Inc. 652 P.2d 625, 631
(Haw. 1982)). Courts in other cases applying Oklahoma law have similarly held that regulations
may supply the “public policy” for purposes of a Burk claim. See, e.g., Gilmore v. Enogex, Inc.,
878 P.2d 360, 364, n.19 (Okla. 1994) (“When attempting to find and articulate a clear mandate
of public policy, we look to the letter or purpose of a constitutional, statutory or regulatory
provision.”); Wilburn v. Mid-South Health Dev., Inc., 343 F.3d 1274, 1277, n.3 (10th Ci. 2003)
(plaintiff must identify a public policy that is “articulated by state constitutional, statutory,
regulatory or decisional law” and, “[a]lthough many cases state that the policy must be
articulated in ‘constitutional, statutory, or decisional law,’ others indicate that regulatory law is
acceptable as well.”). UVRC’s argument that an Oklahoma regulation may not support a Burk
claim is clearly without merit.
UVRC next argues that there is “insufficient evidence” to support plaintiff’s Burk claim.
(Doc. 29 at 14). To establish a Burk claim, a plaintiff must ultimately prove the following
elements: “(1) an actual or constructive discharge (2) of an at-will employee (3) in significant
part for a reason that violates an Oklahoma public policy goal (4) that is found in constitutional,
statutory, or decisional law or in a federal constitutional provision that prescribes a norm of
conduct for Oklahoma and (5) no statutory remedy exists that is adequate to protect the
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Oklahoma policy goal.” Vasek v. Bd. of County Comm’rs of Noble County, 186 P.3d 928, 932
(Okla. 2008).
UVRC contends that Moss has not provided sufficient evidence to support the third
element, that the termination of her employment was, in significant part, for a reason that
violates an Oklahoma public policy goal. The Court disagrees. Moss had never been disciplined
prior to being discharged by UVRC. UVRC does not dispute that Okla. Admin. Code 310:675-75.1 applies to UVRC or that it requires that allegations or incidents of abuse of its residents must
be reported within 24 hours. It is also undisputed that there had been an allegation of sexual
abuse of a resident, which neither Aleshia Coble, the Director of Nursing, nor Ms. Neal, UVRC’s
Executive Director, had reported in the four days between the abuse allegation and Moss’s return
from FMLA leave. Moss asserts that Neal was friends with Michael Knighten, the UVRC
employee who was alleged to have abused the resident. (Doc. 33-23 at ¶¶ 3-4). Knighten had
previously been the subject of an allegation of sexually inappropriate behavior towards other
staff (Doc. 33-11), and had previously pleaded guilty to an assault and battery charge, which was
known to UVRC (Doc. 33-12). And Neal acknowledged that it would have been a violation to
not report the allegation. (Doc. 33-4 at 5, Depo. p. 55).
When Moss returned from maternity leave and learned that UVRC had not made the
required report to the Oklahoma Department of Health, Moss investigated and then made the
report herself. Moss expressed her frustration to Neal that Coble had received the complaint
earlier while Moss was on maternity leave and that it had not been reported, much less
investigated. (Id.). Neal did not discipline Ms. Coble for failing to make the timely report. (Id.).
Neal asserted that she believed that Moss was going to discipline Coble. (Id., Depo. p. 56).
However, on the same date that Moss made the report which UVRC had not made during Moss’s
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absence, Coble complained about Moss’s “questioning [Coble] as to whether or not [Coble] was
going to inform [Moss of the sexual abuse allegation] and noting the time that had lapsed” (Doc.
29-1 at 33). When Moss forwarded Coble’s complaint to Ms. Neal, she counseled Moss that she
should be supporting and reassuring Coble. (Id., Depo. pp. 55-56; see also Doc. 33-24). Thus,
rather than disciplining Coble for failing to timely report a resident allegation of sexual abuse,
Neal suggested that Moss may be viewed “as the ‘big dog pissing on all the trees’ to reestablish
[Moss’s] territory” and counseled Moss that she should be more supportive of Coble. (See Doc.
29-1). Eleven days later, Neal terminated Moss’s employment.
Moss asserts that a reasonable jury could infer from these facts that (1) the allegation of
sexual abuse was not initially reported while Moss was on maternity leave because such a report
would reflect badly upon UVRC for continuing to employ Knighten after knowledge of his
assault and battery conviction and his documented inappropriate and sexually harassing conduct
toward another UVRC employee and (2) UVRC terminated Moss, in significant part, because
Moss reported the resident allegation of sexual abuse by Knighten to the Oklahoma Department
of Health. There is evidence which, construed in favor of Moss, presents facts issues for the jury
as to the basis for Moss’s termination. The close temporal proximity of the termination from
Moss’s report to the Department of Health (11 days), coupled with the other evidence noted
above, reflects the existence of genuine disputes of material facts on the issue of whether the
termination was, in significant part, motivated by Moss’s reporting of the allegation of sexual
abuse of a resident.
B.
FMLA Retaliation Claim
Moss’s FMLA retaliation claim is subject to the burden-shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Metzler v. Fed. Home Loan Bank of
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Topeka, 464 F.3d 1164, 1170 (10th Cir. 2006). Thus, “the plaintiff bears the initial burden of
establishing a prima facie case of retaliation. If the plaintiff does so, then the defendant must
offer a legitimate, non-retaliatory reason for the employment action. The plaintiff then bears the
ultimate burden of demonstrating that the defendant’s proffered reason is pretextual.” Id. (citing
Doebele v. Sprint / United Mgmt. Co., 342 F.3d 1117, 1135 (10th Cir. 2003)).
To state a prima facie case of retaliation, Moss “must show that: (1) she engaged in a
protected activity; (2) [UVRC] took an action that a reasonable employee would have found
materially adverse; and (3) there exists a causal connection between the protected activity and
the adverse action.” Metzler, 464 F.3d at 1171. Here, Moss’s entitlement to 12 weeks of FMLA
leave for the birth of her son is not in dispute, and Moss took such FMLA leave, which satisfies
the first element of a prima facie case. See id. The second element is also not in issue, as Moss’s
employment was terminated, which is a materially adverse action. Id.
UVRC argues that Moss has not demonstrated the third element of a prima facie case
because Moss has not provided any evidence that there was any causal connection between her
FMLA leave and her discharge from employment. (Doc. 29 at 16). The record here shows
genuine disputes of material facts with respect to the causation element, which prevents
summary judgment.
Moss’s employment was terminated shortly after her return from her
lengthy maternity leave. Moss had previously received generally positive performance reviews
and had never been disciplined prior to her termination. These facts are sufficient to establish a
prima facie case.
In addition, assuming that UVRC has identified a legitimate, non-retaliatory reason for
terminating Moss’s employment, Moss has presented evidence that presents fact issues as to
whether UVRC’s stated reason is pretextual. The stated reason on the documentation of her
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termination was a “[l]ack of fit in the UV[RC] culture....failure to display actions that support
our Mission Statement.” (Doc. 33-3). A reasonable jury could discredit this stated lack of fit
with the culture based upon the fact that Moss had worked in her position for over three years,
but UVRC did not in that three years determine she did not fit within the culture until
immediately after she returned from her FMLA leave. Neal also asserts in her affidavit that she
determined to terminate Moss only on the very day of the termination, but the completed
documentation of the termination references the “impact” of Moss’s lack of fit was “[s]taff
turnover higher than it should be; frustrated staff that are not performing at their optimal level
which then affects resident care.” (Id.). UVRC has not provided any evidence that there had
been any staff turnover between Ms. Moss’s return to work and the date of the termination,
although Neal asserts that she made the decision that there was a basis to terminate just that day.
A reasonable jury could view UVRC’s stated reasons for Moss’s termination to be conflicting
and thus pretextual.
Moss has also provided sufficient evidence to undermine the legitimacy of certain of the
alleged write-ups that Neal alleges were previously provided to Moss. For example, Moss
disputes that two of those write-ups / “counselings” were discussed with her. The documents
describing those alleged counselings do not contain the signatures of either Human Resources
personnel or Moss, although such documents typically would contain both Human Resources
and employees’ signatures. Moss also points out that her written performance evaluations for the
relevant time frames conflict with statements in the “counselings”. (See, e.g., Doc. 33 at ¶¶ 8-13,
15, 17). The evidence presents issues of fact as to whether UVRC terminated Moss because she
did not fit within UVRC’s “culture” or UVRC actually terminated Moss in retaliation for her
exercise of FMLA rights.
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IV.
Conclusion
There are issues of fact precluding summary judgment. UVRC’s Motion for Summary
Judgment (Doc. 29) is accordingly denied.
The following schedule shall apply to the remainder of this case:
January 28, 2015
Parties shall submit final proposed Pretrial Order
and Trial Exhibits (2 notebook sets of each party’s)
February 4, 2015 at 9:30 a.m.
Final Pretrial Conference
February 10, 2015
Requested Jury Instructions, Requested Voir Dire,
Trial Briefs (if desired), and Exchange of
Demonstrative Exhibits
February 17, 2015 at 9:30 a.m.
Jury Trial
SO ORDERED this 2nd day of September, 2014.
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