Rodriguez v. Reston Hospital Center, LLC et al

Filing 26

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 2/28/2017. (rban, ) (Main Document 26 replaced on 2/28/2017) (rban, ).

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

ISRAEL RODRIGUEZ,
Plaintiff,
v.
RESTON HOSPITAL CENTER, LLC,
Defendant.

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Case No. 1:16-cv-623 (JCC/JFA)

M E M O R A N D U M

O P I N I O N

This matter is before the Court on Defendant Reston
Hospital Center, LLC’s (“RHC”) Motion to Dismiss Plaintiff’s
First Amended Complaint.

[Dkt. 16.]

For the following reasons,

the Court will deny RHC’s motion to dismiss.
I.

Background

Israel Rodriguez (“Plaintiff” or “Rodriguez”) brings
this suit against RHC for alleged violations of the False Claims
Act (“FCA”), 31 U.S.C. §§ 3730 et. seq., and the Family Medical
Leave Act (“FMLA”), 29 U.S.C. §§ 2601 et. seq.

The following

facts are taken from Plaintiff’s Amended Complaint and, for the
purposes of this motion, are presumed true.
Rodriguez began his employment at RHC in 1995 as an xray technologist.

Am. Compl. ¶ 6.

In 2003, RHC promoted

Rodriguez to Hospital Operations Imaging Manager, a position he
held for more than ten years.

Id. ¶¶ 7, 59.
1

Rodriguez directly

supervised over 100 staff employees in this position and earned
$97,000 per year.

Id. ¶ 9.

As part of its accreditation, RHC is required to
complete yearly competency assessments for all of its employees.
Am. Compl. ¶ 11.

The Joint Commission on the Accreditation of

Healthcare Organizations (“JCAHO”) conducts inspects every three
years to ensure RHC’s compliance.

Id. ¶ 15.

In fact, RHC risks

losing its accreditation if yearly competencies are not
completed.

Id. ¶ 16.

During monthly management meetings in

2013, Rodriguez learned that his direct supervisor and the
Assistant Director of Radiology, Donald Bauer (“Bauer”), had not
yet completed his competencies for the year.

Id. ¶¶ 18-22.

In

early 2014, Debbie Simmons, the Director of Radiology and
Rodriguez’s second-in-line supervisor, confirmed that Bauer had
not done so.

Id. ¶ 24.

Then, in February 2014, Bauer

approached Plaintiff, stated that he had not yet completed his
2013 competencies, and asked Rodriguez to backdate several of
the competencies to 2013.
¶ 27.

Id. ¶ 26.

Rodriguez refused.

Id.

After learning that several other employees were also

asked to backdate competencies, Rodriguez approached them and
told them that he refused to sign the backdated assessments and
advised them to do the same.

Id. ¶ 42.

In March 2014, RHC posted an opening for a staff
technologist in Rodriguez’s department.
2

Am. Compl. ¶ 43.

Rodriguez’s wife, Sheila, also worked at RHC, and she informed a
former colleague, Belinda Hooven-Fossie (“Hooven-Fossie”), of
the opening.

Id. ¶ 44.

Hooven-Fossie applied and did well

during the interview, but Rodriguez removed her from
consideration about discovering that another hospital had
previously terminated her. 1

Id. ¶ 46.

Once a representative

from Human Resources determined that Hooven-Fossie was, in fact,
still hirable under RHC policy, Rodriguez prepared a hire sheet
for her and brought it to Simmons for approval.

Id. ¶¶ 48-49.

Before a hiring decision was made, however, another
technologist, Nicole Pestell (“Pestell”), asked Rodriguez about
the open position.
weekend hours.
¶ 55.

Id. ¶ 53.

Id. ¶ 54.

He told her that it required

Pestell was eventually hired.

Id.

When the hiring process concluded, Simmons initiated an

investigation into Rodriguez’s conduct regarding the open
position, alleging that Rodriguez discouraged Pestell from
applying in order to get a referral bonus for Hooven-Fossie.
Id. ¶¶ 56-57.
The following month, on April 15, 2014, Simmons
demoted Rodriguez to Computed Tomography (“CT”) Technologist,
decreasing his salary by $10,000 per year.

Am. Compl. ¶¶ 59-60.

RHC’s stated reason for the demotion was Rodriguez’s attempt to

1

RHC policy HR.OP.028 precluded hiring an individual who had been previously
terminated. See Am. Compl. ¶ 47.

3

use his authority to hire an employee he had referred for an
open position so that he could earn a referral bonus.
¶¶ 50, 61.

Id.

Additionally, RHC based its demotion decision on

Rodriguez’s alleged improper reporting of an incident of
workplace violence earlier in 2014. 2

Id. ¶ 46.

Following his demotion, Rodriguez was required to
register as a CT Technologist, which required completing 125 CT
exams that were then signed off by another technologist,
supervisor, or radiologist.

Am. Compl. ¶¶ 78, 80.

However,

Plaintiff alleges that Simmons imposed more stringent
requirements, allowing only a radiologist to sign off on his
exams.

Id. ¶ 81.

Id. ¶ 82.

He began his new position on April 21, 2014.

Plaintiff alleges that he was provided with only six

weeks of training, rather than eight weeks, and placed on the
midnight shift, which limited his ability to interact with
patients to complete the exams required for his credentials.
Id. ¶¶ 83-85.

In addition, Plaintiff alleges that he provided

completed CT exams to Simmons to review in late August 2014, but
she never reviewed or returned the exams.

2

Id. ¶¶ 86, 88-94.

In early 2014 during a Sunday night shift, two Diagnostic Technologists got
into a physical altercation. Simmons was the administrator on call, but she
could not be reached. Rodriguez’s wife, Sheila, witnessed the incident and
told Rodriguez when she got home. Rodriguez went to Human Resources to
report the incident, and then reported the incident to Bauer. Bauer and
Rodriguez tried to reach Simmons together, but were unsuccessful. Later,
Simmons criticized Rodriguez for reporting an incident that he did not
personally witness. Am. Compl. ¶¶ 63-70.

4

On September 17, 2014, Rodriguez emailed Simmons to
notify her of some ongoing shoulder issues.

Am. Compl. ¶ 95.

He informed Simmons that he would undergo shoulder surgery on
October 2, 2014, and needed to take several months of FMLA leave
to recover.

Id. ¶ 96.

Following his surgery and recovery,

Rodriguez received approval to return to work from his doctor on
February 24, 2015.

Id. ¶ 102.

However, Simmons required

Rodriguez to complete a “return to work” plan prior to coming
back to RHC, which “shocked” Rodriguez as it was “not typical at
RHC.”

Id. ¶¶ 103-04.

Nevertheless, Rodriguez returned to work

on February 25, 2015—one day later—after completing the required
plan.

Id. ¶ 107.
In late March 2015, Rodriguez turned in additional CT

exams for his application to re-register as a CT technologist.
Am. Compl. ¶¶ 108-09.

He continued to ask Simmons to return the

exams he had submitted to her in August 2014 so that he could
use them to meet his credentialing requirements.
Simmons never did so.

Id. ¶ 112.

Id. ¶ 113.

RHC terminated Rodriguez on April 25, 2015.
Compl. ¶ 110.

Am.

RHC’s reason for his termination was that

Rodriguez had not obtained proper credentials for the CT
position.

Id. ¶ 111.
Plaintiff initiated the instant case on June 6, 2016.

[Dkt. 1.]

The Amended Complaint alleges: (1) wrongful discharge
5

involving retaliation under the FMLA; (2) interference under the
FMLA; and (3) retaliatory discharge under the FCA.

[Id.]

On

November 4, 2016, Defendant filed the instant motion to dismiss.
[Dkt. 16.]

Plaintiff filed his opposition on November 15, 2016,

to which Defendant replied on November 21, 2016.
21.]

[Dkts. 19,

Oral argument was held on February 22, 2017.

This motion

is now ripe for disposition.
II.

Legal Standard

“A motion to dismiss under Rule 12(b)(6) tests the
sufficiency of a complaint; importantly, it does not resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.”

Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992) (citation omitted).

The

Supreme Court has stated that in order “[t]o survive a motion to
dismiss, a [c]omplaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible
on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Id.

“Determining whether a complaint states a plausible
claim for relief [is] . . . a context-specific task that
requires the reviewing court to draw on its judicial experience
6

and common sense.”

Iqbal, 556 U.S. at 679 (citations omitted).

While legal conclusions can provide the framework for a
complaint, all claims must be supported by factual allegations.
Id.

Based upon these allegations, the court must determine

whether the plaintiff’s pleadings plausibly give rise to an
entitlement to relief.

Id.

Legal conclusions couched as

factual allegations are not sufficient, Twombly, 550 U.S. at
555, nor are “unwarranted inferences, unreasonable conclusions,
or arguments,” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P’ship,
213 F.3d 175, 180 (4th Cir. 2000).

The plaintiff, however, does

not have to show a likelihood of success; rather, the complaint
must merely allege - directly or indirectly - each element of a
“viable legal theory.”

Twombly, 550 U.S. at 562-63.

At the motion to dismiss stage, the court must
construe the complaint in the light most favorable to the
plaintiff, read the complaint as a whole, and take the facts
asserted therein as true.

Iqbal, 556 U.S. at 678.

Generally, a

district court does not consider extrinsic materials when
evaluating a complaint under Rule 12(b)(6).

It may, however,

consider “documents incorporated into the complaint by
reference.”

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007); see also Blankenship v. Manchin, 471 F.3d
523, 526 n.1 (4th Cir. 2006).

In addition, the court may

consider documents attached to the defendant’s motion to dismiss
7

if those documents are central to the plaintiff’s claim or are
“sufficiently referred to in the complaint,” so long as the
plaintiff does not challenge their authenticity.

Witthohn v.

Fed. Ins. Co., 164 F. App’x 395, 396–97 (4th Cir. 2006).
III. Analysis
A.

Family Medical Leave Act Claims
1.

Count I: Wrongful Discharge – Retaliation

Plaintiff’s first claim in his Amended Complaint is
based upon a retaliatory wrongful discharge, in violation of the
FMLA.

To establish a prima facie case of retaliation under the

FMLA, a plaintiff must show “that he engaged in protected
activity, that the employer took adverse action against him, and
that the adverse action was causally connected to the
plaintiff’s protected activity.”

Yashenko v. Harrah’s NC Casino

Co., LLC, 446 F.3d 541, 550-51 (4th Cir. 2006) (internal
quotation and citation omitted).
proof of retaliatory intent.”

Such a claim also “requires

Ainsworth v. Loudoun Cnty. School

Bd., 851 F. Supp. 2d 963, 977 (E.D. Va. 2012) (internal
quotation omitted).
Plaintiff’s Amended Complaint alleges that he informed
RHC of his ongoing shoulder issues on or about September 17,
2014.

Am. Compl. ¶ 95.

At that time, he notified RHC that he

needed to take medical leave for a scheduled shoulder surgery on
October 2, 2014.

Id. ¶¶ 96-97.

Plaintiff spent the next few
8

months recovering.

His doctor eventually cleared him to return

to work on or about February 24, 2015.

Id. ¶ 102.

After

informing RHC that he could return, however, Rodriguez was told
by Simmons that he needed to complete a “return to work” plan.
Id. ¶ 103.

Plaintiff alleges that his “return to work” plan was

the first of its kind in the radiology department for employees
returning from medical or disability leave.

Id. ¶ 105.

He

quickly obtained the necessary plan from his doctor and returned
to work the following day: February 25, 2015.

Id. ¶ 107.

Less

than sixty days after returning to work, RHC terminated
Rodriguez.

Id. ¶ 110.
Defendant argues that Plaintiff’s Amended Complaint

does not provide any factual allegations for an FMLA retaliation
claim, but rather only recites the elements.
8.

Mem. in Supp. at

Moreover, Defendant asserts that Plaintiff’s Amended

Complaint is devoid of any allegations that RHC’s conduct was
intentional.

Id. at 9.

Here, it is undisputed that Plaintiff engaged in a
protected activity (taking FMLA leave) and that he experienced
an adverse employment action (termination).

Plaintiff has also

alleged sufficient facts to establish a causal connection
between his FMLA leave and his termination by RHC.

See

Yashenko, 446 F.3d at 551 (quoting Williams v. Cerberonics,
Inc., 871 F.2d 452, 457 (4th Cir. 1989) (“While evidence as to
9

the closeness in time ‘far from conclusively establishes the
requisite causal connection, it certainly satisfies the less
onerous burden of making a prima facie case of causality.’”)).
Additionally, Plaintiff has provided sufficient factual
allegations—such as the newly required “return to work” plan and
his ultimate termination—to draw the reasonable inference of
retaliatory intent.

Accordingly, the Court will deny

Defendant’s motion to dismiss Count I.
2.

Count II: Interference

Plaintiff’s second claim in his Amended Complaint is
for interference under the FMLA.

The necessary elements of an

FMLA interference claim include: “(1) [the plaintiff] was an
eligible employee; (2) the defendant was an employer as defined
under the FMLA; (3) [the plaintiff] was entitled to leave under
the FMLA; (4) [the plaintiff] gave the employer notice of [his]
intention to take leave; and (5) the employer denied the
employee FMLA benefits to which [he] was entitled.”

Ainsworth,

851 F. Supp. 2d at 975 (internal citations omitted).
Interference with an employee’s FMLA leave can include “refusing
to authorize FMLA leave, discouraging an employee from taking
FMLA leave, and manipulating the work force to avoid
responsibilities under the FMLA.”

Battle v. City of Alexandria,

2015 WL 1650246, at *4 (E.D. Va. Apr. 14, 2015) (referencing 29
C.F.R. § 825.220(b)).
10

In addition to the necessary elements, a claim of FMLA
interference must also include proof that the plaintiff was
prejudiced due to the employer’s interference with his FMLA
rights.

Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89

(2002); see also 29 U.S.C. § 2617(a)(1)(A)(i) (prejudice exists
where an employee loses compensation or benefits “by reason of
the violation” or “as a direct result of the violation”).
Having successfully proved prejudice, an employer’s liability
will be limited to compensation and lost benefits “by reason of
the violation,” for other monetary losses sustained “as a direct
result of the violation,” and any “appropriate” equitable
relief.

Ragsdale, 535 U.S. at 89; 29 U.S.C. § 2617(a)(1)(A)(i).
Plaintiff’s Amended Complaint alleges that RHC

interfered with his FMLA rights by requiring him to complete a
“return to work” plan after being cleared by his doctor to go
back to work.

Am. Compl. ¶¶ 102-03.

Plaintiff alleges that

this request “was not typical at RHC” and was, in fact, the
first such requirement in the radiology department during the
ten years he had worked there.

Id. ¶¶ 104-06.

As a result of

this new requirement, Plaintiff was not able to return to work
until the day after his doctor cleared him to do so.

Id. ¶ 107.

Additionally, the Amended Complaint alleges that RHC interfered
with his rights by not adjusting the deadline to complete his
credentialing for the CT tech position to take into account the
11

time he was on FMLA leave, by denying him access to exams he had
submitted for consideration for his credentialing prior to his
medical leave, and by terminating his employment.

Id. ¶¶ 134-

35, 137-38.
Defendant argues that requiring Plaintiff to complete
a “return to work” plan does not amount to interference under
the FMLA.

Mem. in Supp. at 10.

Even if it does qualify as

interference, RHC asserts that the plan only delayed Plaintiff’s
return to work by a single day.

Id. at 11.

In addition,

Defendant claims that whether or not RHC provided Plaintiff with
the full six months to complete his credentialing “has no
bearing on his entitlements under the FMLA or any inference by
RHC.”

Id.

Defendant also asserts that his ability to access

his completed exams and participate in sufficient orientation
and training are “completely unrelated” to his FMLA leave.
at 12-13.

Id.

Finally, Defendant argues that when it terminated

Rodriguez, his FMLA rights were not triggered, as he had not
indicated a future plan to take FMLA leave.

Id. at 14.

Throughout its motion to dismiss, RHC asserts that Rodriguez
suffered no prejudice and sustained no damages.
In the instant case, Plaintiff’s Amended Complaint
alleges sufficient facts from which the Court can plausibly
infer that RHC interfered with his FMLA rights.

Although RHC

authorized Rodriguez’s FMLA leave, it placed additional
12

requirements on him after he returned from leave that would
discourage any employee from exercising his FMLA rights,
including the imposition of a “return to work” plan and the
decision not to extend his deadline to complete his
credentialing to fully account for his FMLA leave.

Moreover,

RHC’s decision to fire Rodriguez was based upon his failure to
complete 125 CT exams by the required deadline, even though
Simmons had prevented Rodriguez from accessing some of his
earlier completed exams to submit for consideration.

Both the

“return to work” plan and Plaintiff’s ultimate termination led
to the loss of compensation and benefits for Plaintiff,
establishing prejudice.

Collectively, RHC’s alleged actions are

sufficient to establish a plausible claim for relief under the
FMLA for interference. 3

The Court will therefore deny

Defendant’s motion to dismiss Count II.
B.

False Claims Act Claim: Wrongful Discharge
Count III of Plaintiff’s Amended Complaint alleges

retaliatory discharge in violation of the FCA, 31 U.S.C.
§ 3730(h).

When Congress passed the FCA, it sought to

incentivize the reporting of government contractor fraud.

To

accomplish this goal, Congress included in the FCA a
whistleblower provision, which states the following:
3

At the same time, the Court agrees with Defendant that Plaintiff has not
pled sufficient facts to reasonably infer that the failure to provide
sufficient orientation and training prior to his FMLA leave in some way
impacted the exercise of his FMLA rights.

13

Any employee . . . shall be entitled to all relief
necessary to make that employee . . . whole, if that
employee . . . is 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 other efforts to stop 1 or more violations of this
subchapter.
Id. § 3730(h).

To lay out a prima facie case for retaliation, a

plaintiff must allege the following: (1) he took acts in
furtherance of a qui tam suit or to stop a violation (i.e., he
engaged in a protected activity); (2) his employer knew of these
acts (the notice element); and (3) his employer took adverse
action against him.

Mann v. Heckler & Koch Defense, Inc., 630

F.3d 338, 343 (4th Cir. 2010).

“Importantly, [at the motion to

dismiss stage,] a plaintiff need not prove an underlying FCA
violation because, as the Supreme Court has explained, § 3730(h)
protects an employee's conduct ‘even if the target of an
investigation or action to be filed was innocent.’”

Nifong v.

SOC, LLC, 190 F. Supp. 3d 549, 556 (E.D. Va. 2016) (citing
Graham Cnty. Soil & Water Conservation Dist. v. U.S. ex rel
Wilson, 545 U.S. 409, 416 (2005)).

“Moreover, the Fourth

Circuit has made clear that a plaintiff's allegations need only
meet the pleading standard set forth in Rule 8(a), not the
heightened pleading standard set forth in Rule 9(b).”

Id.

(citing Smith v. Clark/Smoot/Russell, 796 F.3d 424, 433 (4th
Cir. 2015) (internal citations omitted).
14

Defendant argues that Plaintiff’s Amended Complaint
relies upon too many inferential leaps and speculation to
survive its motion to dismiss.

Mem. in Supp. at 18.

First,

Defendant points out that Plaintiff is merely speculating about
whether RHC would lose its accreditation if it failed to submit
accurate competency assessments to JCAHO.

Repl. at 5.

Second,

RHC claims that Plaintiff fails to allege that RHC did, in fact,
submit any false records to JCAHO or that it submitted anything
false to the federal government for certification or payment.
Mem. in Supp. at 17.

Finally, Defendant alleges that Rodriguez

fails to identify any specific Condition of Participation
(“CoP”) in Medicare or Medicaid with which RHC has not complied.
Repl. at 5.

As a result, RHC asserts that there is too much

attenuation between the backdated competency assessments and the
government fisc to establish a potential FCA violation.
Supp. at 18.

Mem. in

These arguments miss the mark, however, as they

focus on whether RHC committed an actual FCA violation, rather
than whether Plaintiff sufficiently laid out a case for
retaliation under the FCA.
Contrary to Defendant’s assertions, Plaintiff’s
Amended Complaint sufficiently alleges the elements required to
state a plausible claim for relief.

Rodriguez attempted to stop

a possible FCA violation when he complained about and opposed
backdating competency assessments in February 2014 as part of
15

the hospital’s accreditation process, engaging in protected
activity. 4

Am. Compl. ¶ 143.

Plaintiff wrote two letters to

RHC, one in July 2014 and one in November 2014, describing the
basis for RHC’s possible FCA liability and his retaliation
claim, providing the hospital with notice of both his conduct
and his claims.

Id. ¶¶ 160, 164.

Finally, Plaintiff included

factual allegations regarding adverse employment actions that
RHC took against him, including demoting him in April 2014 and
firing him a year later.

Id. ¶¶ 59, 110.

Accordingly, the

Court will deny Defendant’s motion to dismiss Count III.
IV. Conclusion
For the reasons set forth above, the Court will deny
Defendant’s motion to dismiss in its entirety.
An appropriate order will follow.

February 28, 2017
Alexandria, Virginia

/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

4

He also advised other employees not to backdate these competencies.
Compl. ¶ 159.

16

Am.