Patterson v. Gentiva Health Services Inc

Filing 9

ORDER denying 5 Motion to Dismiss. Signed by Honorable J Michelle Childs on 7/25/11.(awil)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Eugene Patterson,

)
)
Plaintiff,
)
)
v.
)
)
Gentiva Health Services, Inc.,
)
)
Defendant.
)
___________________________________ )

C.A. No. 6:10-cv-03021-JMC

OPINION AND ORDER

This case arises out of Plaintiff Eugene Patterson’s (“Patterson”) termination of
employment by Defendant Gentiva Health Services, Inc. (“Gentiva”). Currently before the court
is Defendant’s Motion to Dismiss First Cause of Action contained in Plaintiff’s Complaint [Doc.
5] pursuant to Fed. R. Civ. P. 12(b)(6) in which Gentiva asks the court to dismiss Patterson’s
cause of action for wrongful discharge in violation of public policy.
FACTUAL AND PROCEDURAL BACKGROUND
Patterson was a registered home health care nurse employed by Gentiva. Patterson
alleges that in October 2008, he was ordered by a physician to undertake wound care for a
patient twice weekly for two weeks. He further alleges that prior to the expiration of the wound
care order, Gentiva requested that he cease the provision of wound care to the patient. Patterson
performed the wound care on the patient after receiving instructions from Gentiva not to do so
because he understood that the physician order for the wound care remained in place. Patterson
also alleges that he was required to continue the physician-ordered wound care by South
Carolina statutes governing the practice of nursing.

Shortly thereafter, Gentiva terminated

Patterson’s employment on the basis of insubordination by providing wound care to the patient
in contravention of Gentiva’s instructions.
Patterson filed a complaint against Gentiva in state court alleging causes of action for
wrongful termination in violation of public policy and breach of contract. Gentiva removed the
case to this court and filed the instant motion to dismiss.
LEGAL STANDARD
For a complaint to survive a motion to dismiss, the Federal Rules of Civil Procedure
require that it contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although Rule 8(a) does not require “detailed factual
allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation,” Ashcroft v. Iqbal, ---U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555-57 (2007)), in order to “give the defendant fair notice ... of
what the claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555 (internal
citations omitted). Stated otherwise, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949
(quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw [a] reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). A complaint alleging facts
which are “merely consistent with a defendant’s liability ... stops short of the line between
possibility and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557, 127
S. Ct. 1955) (internal quotation marks omitted).
In evaluating a motion to dismiss, a plaintiff’s well-pleaded allegations are taken as true,
and the complaint, including all reasonable inferences therefrom, is liberally construed in the

plaintiff’s favor. See McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 327 (4th Cir.1996). The
court may consider only the facts alleged in the complaint, which may include any documents
either attached to or incorporated in the complaint, and matters of which the court may take
judicial notice.

See Tellabs v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

Although the court must accept the plaintiff’s factual allegations as true, any conclusory
allegations are not entitled to an assumption of truth, and even those allegations pled with factual
support need only be accepted to the extent that “they plausibly give rise to an entitlement to
relief.” Iqbal, 129 S. Ct. at 1950.
DISCUSSION
Generally, an employer may terminate an at-will employee for any reason or for no
reason at all. Culler v. Blue Ridge Elec. Co-op., Inc., 309 S.C. 243, 422 S.E.2d 91 (1992).
However, when an employer terminates an employee for a reason that violates a clear mandate
of public policy, the terminated employee has a cause of action for wrongful discharge. Ludwick
v. This Minute of Carolina, Inc., 287 S.C. 219, 225, 337 S.E.2d 213, 216 (1985). The public
policy exception has been found to apply in two situations: (1) when an employer forces an atwill employee to break the law in order to keep his job; and (2) when “the reason for the
employee’s termination was itself a violation of the criminal law.” Love v. Cherokee Cnty.
Veterans Affairs Office, No. 7:09-194-HMH, 2009 WL 2394369 (D.S.C. July 31, 2009) (citing
Ludwick, 287 S.C. 219, 337 S.E.2d 213, and Lawson v. S.C. Dept. of Corr., 340 S.C. 346, 532
S.E.2d 259, 261 (2000)). When a terminated employee sues his former employer alleging the
employer violated rights other than the right to employment — constitutional rights or rights
granted by a specific statute, for example — he has no cause of action for wrongful discharge in
violation of public policy. See Wiedeman v. Ridgeway Min. Co., No. 0:92-2342-17, 1993 WL

379545 (D.S.C. June 23, 1993) (citing Epps v. Clarendon Cnty., 304 S.C. 424, 426, 405 S.E.2d
386, 387 (1991)).
Patterson alleges that he performed wound care services to the patient despite Gentiva’s
instructions to discontinue such services because South Carolina law prohibited his abandonment
of a patient once the nurse-patient relationship commenced. S.C. Code. Ann § 40-33-110(24)
provides that a nurse may be subject to discipline of his license if he:
abandoned a patient after accepting the patient assignment and establishing a
nurse-patient relationship and disengaged the nurse-patient relationship without
giving reasonable notice to the appropriate personnel responsible for making
arrangements for continuation of nursing care.
Patterson alleges in his complaint that Gentiva terminated his employment as a result of
his efforts to comply with this statute. Stated otherwise, Patterson alleges that Gentiva required
him to ignore this statute to remain in its employ. Taking Patterson’s allegations as true and
liberally construing all reasonable inferences therefrom in his favor, Patterson has adequately
alleged that he was asked to violate or ignore the law to maintain his job with Gentiva.
Accordingly, the court denies Gentiva’s request for dismissal of Patterson’s claim for
wrongful discharge.
CONCLUSION
For the foregoing reasons, the court DENIES Defendant Gentiva Health Services, Inc.’s
Motion to Dismiss First Cause of Action Contained in Plaintiff’s Complaint [Doc. 5].
IT IS SO ORDERED .
s/ J. Michelle Childs
United States District Judge
July 25, 2011
Greenville, South Carolina