Opinion
2:03-cv-0327 JDT-WGH.
May 18, 2004
ENTRY ON DEFENDANT'S PARTIAL MOTION TO DISMISS
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Lynne L. Akers, filed suit against Defendant, Kindred Nursing Centers Limited Partnership, d/b/a Southwood Health and Rehabilitation Center ("Southwood"), for disability discrimination and retaliatory discharge under Indiana common law. This matter is before the court on Defendant's Motion to Dismiss Count Two of Plaintiff's Amended Complaint, which alleges retaliatory discharge under Indiana common law. The court decides this matter as follows:
I. Background
Ms. Akers' Amended Complaint alleges the following facts that are relevant to this motion: Southwood is a nursing home, long term care and rehabilitation facility in Terre Haute, Indiana. (Amended Compl. ¶ 2.) Ms. Akers is a licensed practical nurse (LPN). Ms. Akers worked briefly for Southwood from January 2002 to March 2002. She was rehired on or about February 11, 2003, and continued to work for Southwood until her employment was terminated on April 18, 2003. ( Id. ¶ 3.) In a letter to Assistant Director of Nursing Heather Hoffman, dated April 15, 2003, Ms. Akers memorialized her complaint about being asked to serve as the only nurse at Southwood on duty for 140 residents. She explained that she was not able to care for 140 residents by herself safely. ( Id. ¶ 7.) Ms. Akers' employment was terminated almost immediately after she wrote the letter to Ms. Hoffman. According to Ms. Akers, she was terminated in retaliation for refusing to violate nursing laws, regulations, and codes of ethics concerning patient care. ( Id. ¶ 8.)In Count Two of the Amended Complaint, Ms. Akers alleges that Southwood terminated Ms. Akers' employment in retaliation for engaging in protected activity. ( Id. ¶ 24.) Count Two states that "in addition to engaging in activity concerning her rights under the ADA," Ms. Akers told members of Southwood management that she refused to violate the applicable patient care laws which applied to her as a LPN when she refused to work under circumstances in which Southwood was not adequately staffed with enough nurses to care for its 140 patients. ( Id.) Ms. Akers reiterated this complaint in writing in her April 15, 2003, letter to Ms. Hoffman and was terminated shortly thereafter. ( Id.)
Count Two of the Amended Complaint further provides that Southwood's termination of Ms. Akers' employment was in direct contravention of Ms. Akers' legal and professional duties under § 25-1-9-4 of the Indiana Code. ( Id. ¶ 25.) Ms. Akers claims that Southwood wrongfully discharged her under circumstances in which Ms. Akers would have been legally and professionally responsible and subject to discipline if she had "gone along with Southwood's plan to provide inadequate patient care, through under staffing of required health professionals." ( Id.) Ms. Akers made this a specific issue in her letter to Ms. Hoffman. ( Id.) Count Two also asserts that such retaliation violates the public policy of the State of Indiana. ( Id.)
Plaintiff filed the Complaint on December 12, 2003, and Amended Complaint on February 24, 2004. Defendant filed this Partial Motion to Dismiss on March 4, 2004. On April 6, 2004, Plaintiff filed a Response to Defendant's Motion. On April 20, 2004, Defendant filed its Reply. On April 27, 2004, Plaintiff filed a Motion to Strike Defendant's Reply for filing the Reply after the due date. On April 28, 2004, Defendant filed a Response to Plaintiff's Motion to Strike the Reply, to which Plaintiff filed a Reply on April 29, 2004.
II. Plaintiff's Motion to Strike Defendant's Reply Brief
Plaintiff moves to strike Defendant's Reply Brief, which was filed on April 20, 2004, arguing that Defendant's Reply Brief was due on April 16, 2004. Local Rule 7.1 provides that a defendant has seven days after being served with the Response Brief to serve and file a Reply Brief. S.D. Ind. L.R. 7.1(a). Local Rule 7.1 further provides that "[t]ime shall be computed as provided in Rule 6, Fed.R.Civ.P." S.D. Ind. L.R. 7.1(a). Under Federal Rule of Civil Procedure 6, "[w]hen the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Fed.R.Civ.P. 6(a). Rule 6 also provides: "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days shall be added to the prescribed period." Fed.R.Civ.P. 6(e).Plaintiff filed her Response Brief on April 6, 2004, and service of the same was made on Defendant on April 6, 2004. Under the court's calculation, Defendant was required to file a Reply Brief in the matter by April 20, 2004. The court finds that Defendant's Reply Brief was not untimely filed. Plaintiff's Motion to Strike Defendant's Reply Brief is DENIED.
III. 12(b)(6) Standard
In determining a motion to dismiss, the court views "the complaint in the light most favorable to the plaintiff, taking as true all well-pleaded factual allegations and making all possible inferences from those allegations in his or her favor." Lee v. City of Chi., 330 F.3d 456, 459 (7th Cir. 2003) (citing Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991)). The court will not grant the motion "unless it appears 'beyond a reasonable doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Manning v. Miller, 355 F.3d 1028, 1031 (7th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 46 (1957)).III. Discussion A. Common Law Public Policy Exception for Alleged Nursing Conduct
"Indiana law provides that if there is no definite or ascertainable term of employment, then the employment is at-will, and is presumptively terminable at any time, with or without cause." Coutee v. Lafayette Neighborhood Hous. Servs., 792 N.E.2d 907, 911 (Ind.Ct.App. 2003) (citing Markley Enters. v. Grover, 716 N.E.2d 559, 564 (Ind.Ct.App. 1999); McGarrity v. Berlin Metals, Inc., 774 N.E.2d 71, 76-77 (Ind.Ct.App. 2002), trans. denied (2004)). "[A] public policy exception to the employment-at-will doctrine exists if a clear statutory expression of a right or duty is contravened." Id.
The Indiana courts first recognized a public policy exception to the employment at will doctrine in Frampton v. Cent. Ind. Gas Co., 297 N.E.2d 425 (Ind. 1973). In Frampton, an employee was fired after filing a workmen's compensation claim. The Indiana Supreme Court held that "when an employee is discharged solely for exercising a statutorily conferred right an exception to the general rule must be recognized." Id. at 428.
In McClanahan v. Remington Freight Lines, Inc., 517 N.E.2d 390 (Ind. 1988), the Indiana Supreme Court expanded the Frampton holding. The plaintiff was an interstate truck driver who was fired after he refused to drive a truck into Illinois because the truck weighed more than that permitted by Illinois law. The Indiana Supreme Court stated: "[F]iring an employee for refusing to commit an illegal act for which he would be personally liable is as much a violation of public policy declared by the legislature as firing an employee for filing a workmen's compensation claim." Id. at 393. The McClanahan Court reasoned:
No Indiana statute explicitly states that public policy is violated by committing an illegal act or requiring an employee to do so at the risk of his job. Nonetheless, the idea that individuals contravene public policy when they violate the law is so basic to our social and political order that a legislative pronouncement of that concept is hardly necessary. Some states interpret the penal code as a statement of public policy; when the law is violated, so is the public policy.
If McClanahan had chosen to drive his overweight truck through Illinois, he would have been personally liable for violation of Illinois law and subject to a fine. Furthermore, he would have been jointly and severally liable for the cost of repairing any damage to the highway or highway structures caused by his overweight vehicle.
Depriving McClanahan of any legal recourse under these circumstances would encourage criminal conduct by both the employee and the employer. Employees faced with the choice of losing their jobs or committing an illegal act for which they might not be caught would feel pressure to break the law simply out of financial necessity. Employers, knowing the employees' susceptibility to such threats and the absence of civil retribution, would be prompted to present such an ultimatum.Id. (internal citations omitted); see also Walt's Drive-a-Way Serv. v. Powell, 638 N.E.2d 857 (Ind.Ct.App. 1994) (truck driver who was terminated for refusing to drive more hours than permitted by federal safety regulations, a violation for which truck driver would have been personally liable, could bring wrongful discharge action against employer).
In McGarrity v. Berlin Metals, the Indiana Court of Appeals held that the corporate financial officer of a corporation could sue his employer for wrongful termination, where the plaintiff alleged that the employer terminated his employment because he refused to certify false financial records as part of a scheme to underreport tax liability. 774 N.E.2d at 77. Additionally, the Indiana Court of Appeals has held that a plaintiff may bring a claim of retaliatory discharge even if the plaintiff has not filed a workmen's compensation claim, but stated her intent to file a claim to her employer. Stivers v. Stevens, 581 N.E.2d 1253 (Ind.Ct.App. 1992).
Defendant argues that the public policy exception does not apply to Plaintiff's claim in Count Two because Plaintiff's claim amounts to nothing more than that of an alleged whistle-blower. The Indiana courts have been unwilling to expand the public policy exception to cases where employees who are terminated for whistle-blowing. See McGarrity, 774 N.E.2d at 78 (citing Campbell v. Eli Lilly Co., 413 N.E.2d 1054, 1061 (Ind.Ct.App. 1980), trans. denied (1981); Martin v. Platt, 386 N.E.2d 1026, 1028 (Ind. 1979)); see also Coutee, 792 N.E.2d at 911. In whistle-blower cases, "the employees' reports of their employers' illegal activities, while certainly advantageous if substantiated, were not mandatory under the law, unlike compliance with a state's penal code." McClanahan, 517 N.E.2d at 393 n. 1. "Normally, of course, the determination of what constitutes public policy, or which of competing public policies should be given precedence, is a function of the legislature." Martin, 386 N.E.2d at 1028. Thus, in Campbell, the Indiana Court of Appeals held that an employee did not have a cause of action for retaliatory discharge because the plaintiff, who claimed he was under a duty to communicate to his superiors the allegedly hazardous nature of certain products produced by the employer, could not demonstrate a statutory source for the alleged duty. 413 N.E.2d at 1061.
In the present case, however, Ms. Akers has identified the specific statute under which she had a duty to report unprofessional conduct. Ms. Akers argues that under Ind. Code § 25-1-9-4, governing standards of practice for health professions, she could be subject to disciplinary sanctions for violations of the Indiana State Board of Nursing's standards of practice. Section 25-1-9-4 provides, in relevant part:
(a) A practitioner shall conduct the practitioner's practice in accordance with the standards established by the board regulating the profession in question and is subject to the exercise of the disciplinary sanctions under section 9 of this chapter if, after a hearing, the board finds:
(3) a practitioner has knowingly violated any state statute or rule, or federal statute or regulation, regulating the profession in question;
Ms. Akers states that as a LPN she has professional and legal duties governed by statute and the Indiana Administrative Code, including Ind. Admin. Code tit. 848 r. 2-3-3. The Indiana State Board of Nursing's Standards for the Competent Practice of Licensed Practical Nursing defines unprofessional conduct, in relevant part, as follows:
Nursing behaviors (acts, knowledge, and practices) failing to meet the minimal standards of acceptable and prevailing licensed practical nursing practices, which could jeopardize the health, safety, and welfare of the public shall constitute unprofessional conduct. These behaviors shall include, but are not limited to, the following:
(13) Failing to notify, in writing, the appropriate party which may include:
(A) the office of the attorney general, consumer protection division;
(B) his or her employer or contracting agency; or
(C) the board;
of any unprofessional conduct which may jeopardize patient/client safety.
Ind. Admin. Code tit. 848 r. 2-3-3(13).
The Department of Health and Human Services' Requirements for Long Term Care Facilities mandates that a "facility must have sufficient nursing staff to provide nursing and related services to attain the highest practicable physical, mental and psychological well-being of each resident." 42 C.F.R. § 483.30. Ms. Akers argues that if she did not make the report of insufficient staffing to Southwood, she would have committed one or more of the acts of unprofessional conduct in violation of Ind. Admin. Code tit. 848 r. 2-3-3 and subjected herself to personal liability, and disciplinary sanctions under Ind. Code § 25-1-9-4.
Southwood argues that Ind. Admin. Code tit. 848 r. 2-3-3 does not impose a duty to report inadequate staffing. According to Southwood, the plain language of 2-3-3 indicates that its purpose is to require LPNs to report unprofessional conduct of other nurses. 2-3-3(13) states that unprofessional conduct includes "[f]ailing to notify, in writing, the appropriate party . . . of any unprofessional conduct which may jeopardize patient/client safety." Ind. Admin. Code tit. 848 r. 2-3-3(13) (emphasis added). The plain language of the statute does not limit the duty to notify to only unprofessional conduct engaged in by nurses, but requires the reporting of any unprofessional conduct. Moreover, the interpretation urged by Southwood, that LPNs are only required to report behaviors of other nurses but not unsafe conduct by long term care facilities, would be inconsistent with one of the apparent purposes of the rule — to prevent practices "which could jeopardize the health, safety, and welfare of the public."
Southwood also argues that Ms. Akers has not demonstrated how a long-term care facility's alleged failure to comply with 42 C.F.R. § 483.30 imposes liability on Ms. Akers, noting that 42 C.F.R. § 483.30 does not purport to regulate the profession of licensed practical nurses. 42 C.F.R. § 483.30 does not appear to impose any direct liability on Ms. Akers. Instead, Ms. Akers' liability stems from Ind. Code § 25-1-9-4, which requires Ms. Akers to comply with standards of the Indiana State Board of Nursing, and Ind. Admin. Code tit. 848 r. 2-3-3(13), which requires Ms. Akers to report any unprofessional conduct which may jeopardize patient/client safety. Ms. Akers' belief that an understaffed long term care facility jeopardizes patient safety is supported by 42 C.F.R. § 483.30, which requires long term care facilities to maintain appropriate levels of staffing.
Southwood argues that Ms. Akers claim does not fall under cases like McGarrity or McClanahan because Ms. Akers was not facing criminal penalties. The Indiana courts have not limited wrongful discharge claims to situations where an employee would only face criminal liability. In Call v. Scott Brass, Inc., 553 N.E.2d 1225 (Ind.Ct.App. 1990), the Indiana Court of Appeals held that an employee who alleged that she was terminated for fulfilling her statutory duty to appear for jury duty could bring a claim for retaliatory discharge under the public policy exception to the employment at will doctrine. The Indiana Court of Appeals stated: "Violation of state statutes will not be tolerated, in either criminal or civil forums." Id. at 1230. The Indiana Court of Appeals in Call further reasoned: "[I]f public policy is served by creating liability for those who would thwart the jury process by intimidating employees to prevent them from serving, then the threat of common law suits in tort, in addition to the statutory remedy, would only further serve that public policy by deterring such conduct by employers." Id.
In the present case, the Indiana legislature has stated its public policy of requiring professionals to adhere to standards set by the Board regulating the profession. Ind. Code § 25-1-9-4 places a duty on professionals to conduct their practice "in accordance with the standards established by the board regulating the profession in question." The Indiana State Board of Nursing regulates Ms. Akers' profession, and requires licensed practical nurses to "notify, in writing, the appropriate party . . . of any unprofessional conduct which may jeopardize patient/client safety." Ind. Admin. Code tit. 848 r. 2-3-3(13). Insufficient staffing by a long term care facility may jeopardize patient safety, as evidenced by 42 C.F.R. § 483.30. If Ms. Akers failed to notify the proper party of the understaffing of the nursing home, Ms. Akers could have been subject to disciplinary sanctions. Moreover, denying Ms. Akers legal recourse would encourage both LPNs and their employers to violate the law. See McClanahan, 517 N.E.2d at 393. Ms. Akers, faced with the option of losing her job or breaking the law, may break the law out of financial necessity; employers, knowing that employees are vulnerable to such threats, would continue to make them. See id. Defendant's Motion to Dismiss Plaintiff's claim against Southwood for retaliatory discharge relating to Ms. Akers' complaint concerning nursing standards is DENIED.
B. Common Law Public Policy Exception for Alleged ADA Conduct
Southwood also moves to dismiss Ms. Akers' claim under Count II "[t]o the extent Plaintiff is asserting a common law retaliation claim as to her alleged ADA conduct." It is not clear from the Amended Complaint or Ms. Akers' Response Brief if Ms. Akers intends to argue a common law retaliation claim for the ADA related conduct. In Count Two of the Amended Complaint, Ms. Akers states: "[I]n addition to engaging in activity concerning her rights under the ADA, Akers expressly told members of Southwood management that she refused to violate the applicable patient care laws which applied to her. . . ." (Amended Compl. ¶ 24.) However, in Plaintiff's Brief, Ms. Akers argued, in response to Southwood's argument that Plaintiff does not have a retaliatory discharge claim relating to the ADA conduct: "The fact that [Ms.] Akers has the ability to prove her separate ADA theories does not make Southwood's other retaliatory conduct any less actionable." Thus, Ms. Akers appears to have interpreted Southwood's argument to mean that because Ms. Akers has a cause of action under the ADA for retaliation Ms. Akers cannot argue retaliatory discharge based on Plaintiff's Complaint to Southwood about understaffing. However, Ms. Akers also argued in her Response Brief that Southwood has not cited any authority for the proposition that a plaintiff must demonstrate that she has no other legal remedy in order to fall under the public policy exception.Southwood contends that because Ms. Akers' ADA claim is not remediless, the Frampton public policy exception does not apply to it. In Frampton, one of the factors considered by the Indiana Supreme Court in creating the public policy exception was the fact that the plaintiff would be remediless if retaliatorily discharged. 297 N.E.2d at 428. Several district courts have also held that the public policy exception does not apply to a plaintiff who is not remediless. See Knight v. Pillsbury Co., 761 F. Supp. 618, 621 (S.D. Ind. 1990); Helman v. AMF, Inc., 675 F. Supp. 1163, 1165 (S.D. Ind. 1987); Reeder-Baker v. Lincoln Nat'l Corp., 644 F. Supp. 983, 986 (N.D. Ind. 1986).
However, it is not clear that the Indiana courts would require that a plaintiff be remediless in order for the public policy exception to apply. In Call v. Scott Brass, Inc., the Indiana Court of Appeals held that although the legislature had provided a remedy for employees who were terminated by their employers for complying with jury summons, a terminated employee also had a remedy at common law for retaliatory discharge. 553 N.E.2d at 1226-29. The Call court began its discussion of the matter by noting that "[i]n Indiana, when the legislature enacts a statute which creates a right, which did not exist previously, and prescribes a remedy for the infringement of that right, the statutory remedy is exclusive." Id. at 1227 (citations omitted). "Thus, the critical issue in this case is which came first: the judially created Frampton-McClanahan public policy cause of action or the statutory cause of action?" Id. The Call court found that "the judicially created remedy for a retaliatory discharge of an employee terminated for complying with a jury summons preceded the statutory remedy," and consequently held that the remedy provided by the statute was not the plaintiff's exclusive remedy. Id. at 1229. The Indiana Court of Appeals further noted that "even if the statute had preceded the Frampton remedy in this case, we would not be inclined to hold that the statute was exclusive. Other statutes which have exclusive remedies specify their exclusivity in the statute." Id. (citations omitted). On the grounds asserted, Defendant's Motion to Dismiss a claim brought by Plaintiff of retaliatory discharge under Indiana common law for the ADA related conduct is DENIED.
IV. Conclusion
For the foregoing reasons, Defendant's Partial Motion to Dismiss is DENIED.ALL OF WHICH IS ORDERED.