McGilberry v. Select Specialty Hospital

MEMORANDUM in Support re MOTION for Summary Judgment

S.D. Miss.October 19, 2018

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI NORTHERN DIVISION CYNTHIA MCGILBERRY PLAINTIFF V. CIVIL ACTION NO. 3:17-cv-289-TSL-LRA SELECT SPECIALTY HOSPITAL DEFENDANT MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMES NOW Defendant Select Specialty Hospital-Jackson, Inc., incorrectly identified as Select Specialty Hospital (“Defendant” or “Select Specialty”), by and through its counsel of record, and submits this Memorandum in Support of its Motion for Summary Judgment. There are no disputed issues of material fact, and Defendant is entitled to judgment on each of Plaintiff Cynthia McGilberry’s claims. I. INTRODUCTION This lawsuit involves the termination of Plaintiff Cynthia McGilberry’s (“Plaintiff” or “McGilberry”) employment after she repeatedly failed to meet the expectations of her position despite multiple opportunities to improve and near constant coaching and support. After a survey by The Joint Commission revealed McGilberry was not following the Select Model for best practices regarding quality, she was coached and counseled regarding the requirements of her position, including the importance of complying with Select Specialty’s expectations regarding mortality reviews and data entry. However, despite receiving additional training and one-on-one coaching, McGilberry admits she did not believe these duties were important and only performed them when she “had the time.” After McGilberry failed to improve her performance despite more than nine (9) months of coaching and having been placed on a last Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 1 of 32 2 chance performance improvement plan, Select Specialty’s CEO, Chandler Ewing, terminated her employment. In response, McGilberry filed suit on April 20, 2017, alleging causes of action pursuant to Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981 arising from McGilberry’s former employment with Select Specialty. [1] Almost a year later, on February 28, 2018, McGilberry amended her complaint, claiming for the first time she had been wrongfully terminated under Mississippi common law.1 [32] McGilberry claims her employment with Select Specialty was terminated because of her race and/or sex, because she complained that Select Specialty treated white males more favorably, and/or because she reported “complaints of patients and/or family members of Medicaid recipients to the attention of Select for resolution.” [32] As demonstrated by the undisputed evidence and argument herein, McGilberry’s claims are without merit, and Select Specialty is entitled to judgment as a matter of law. II. STATEMENT OF UNDISPUTED MATERIAL FACTS Select Specialty is a fifty-three (53) bed long-term acute care hospital that provides diagnostic and medical treatment to patients with chronic disease or complex medical conditions, whose average length of stay exceeds twenty-five (25) days. (Declaration of Chandler Ewing, Ex. “A.”) In carrying out its mission to provide high quality care to its patients, Select Specialty remains committed to the goal of providing equal employment opportunities to all of its employees, both in principle and as a matter of policy. (McGilberry Dep., pp. 144-55, Ex. “B;” Ewing Dec.; Excerpts of Employee Handbook, att. “C-1” to Declaration of Stephanie Williams, Ex. “C;” Excerpts of Code of Conduct, att. “C-2” to Williams Dec.; Equal Employment 1 McGilberry initially requested leave of the Court to amend her Complaint to add common law claims of wrongful termination, intentional infliction of emotional distress, negligent/grossly negligent supervision and training, vicarious liability, and negligence. [18-1] However, following a telephonic hearing, the Court granted in part McGilberry’s motion to amend only to the extent that she was permitted to add her state law claim of wrongful termination. See Court’s text only order, entered Feb. 13, 2018; see also [32]. Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 2 of 32 3 Opportunity Policy, att. “C-3” to Williams Dec.) Select Specialty and its parent corporation, Select Medical Corporation (“Select Medical”), take all reported employee concerns very seriously, and will investigate and address employee concerns. (McGilberry Dep., pp. 144-55; Ewing Dec.) As such, Select Specialty maintains an open door policy and provide numerous methods for employees to report concerns to include, but not limited to, discussing concerns with Select Specialty’s leadership and/or human resources department. (McGilberry Dep., pp. 144-55; Excerpts of Employee Handbook, att. “C-1” to Williams Dec.; Ewing Dec.) Additionally, any employee of a Select Medical affiliated hospital, including Select Specialty, may also report concerns anonymously through available compliance and human resources hotlines. (McGilberry Dep., pp. 147-55; Ewing Dec.) McGilberry acknowledged receipt of these policies and underwent training regarding the same at the time of her hire by Select Specialty in May 2013. (McGilberry Dep., pp. 144-55; Ewing Dec.; Training History, att. “C-4” to Williams Dec.) McGilberry was hired as the Director of Quality Management (“DQM”) by Select Specialty’s Chief Executive Officer, Chandler Ewing, effective May 6, 2013, and she worked in that capacity until Ewing terminated her employment for failing to meet performance expectations effective October 21, 2016. (McGilberry Dep., pp. 102, 124-25, 143-47, 292-95; Ewing Dec.; Offer of Employment, att. “C-5” to Williams Dec.; Disciplinary Action Form, att. “C-6” to Williams Dec.) Throughout her employment, McGilberry reported to and was directly supervised by Ewing. (McGilberry Dep., pp. 141, 161-62; Director of Quality Management Job Description, att. “C-7” to Williams Dec.; Ewing Dec.) In her position as DQM, McGilberry was responsible for overseeing and leading quality of care matters at Select Specialty, including risk management, quality improvement, survey readiness, infection control, and employee health and Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 3 of 32 4 education.2 (McGilberry Dep., pp. 134-35, 160-66; Director of Quality Management Job Description, att. “C-7” to Williams Dec.; DQM Required Data Collection, att. “C-8” to Williams Dec.; Ewing Dec.; Declaration of Debbie White, Ex. “D.”) Unlike other members of Select Specialty’s management team, the DQM is responsible for coordinating multiple areas of the Hospital’s operations, touching most every area of the Hospital. (McGilberry Dep., p. 378; Ewing Dec.; White Dec.) Select Specialty voluntarily participates in a certification and accreditation program offered to various health care organizations by The Joint Commission, which focuses on patient safety and quality of care. (McGilberry Dep., pp. 51-52, 162-65, 171-72, 177-78; Ewing Dec.; White Dec.) As part of the certification process, Select Specialty agrees to participate in unannounced onsite surveys that occur a minimum of once every thirty-six (36) months. (McGilberry Dep., pp. 51-52, 162-65, 171-72, 177-78; Ewing Dec.; White Dec.) As the DQM, McGilberry was responsible for quality of care matters and survey readiness and was considered the primary Select Specialty representative for all Joint Commission and accreditation matters. (McGilberry Dep., pp. 51-52; DQM Job Description, att. “C-7” to Williams Dec.; Ewing Dec.; White Dec.) In order to prepare for the official survey conducted by The Joint Commission and to identify areas for improvement, Select Specialty participates in mock surveys conducted by Select Medical employees responsible for quality. (McGilberry Dep., pp. 171-72; Ewing Dec.; White Dec.) During McGilberry’s employment, Select Specialty participated in one (1) such mock survey conducted by Teresa Harris, Regional Chief Nursing Officer for Select Medical 2 According to McGilberry, when she was hired she was given the opportunity to observe the Director of Quality Management role at another Select Medical affiliated hospital, received remote support from Select Medical’s Regional Director of Quality Management assigned to support Select Specialty at that time, and provided online training courses. (McGilberry Dep., pp. 135-40; Training History, att. “C-4” to Williams Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 4 of 32 5 (African American female), in September 2015 in anticipation of an upcoming official survey by the Joint Commission that was expected to occur in early 2016.3 (McGilberry Dep., pp. 172; Ewing Dep., pp. 92-94, Ex. “F"; Ewing Dec.; White Dec.) Harris identified a number of issues and practices that had the potential to negatively impact Select Specialty during an official survey and, at the conclusion of her onsite assessment, provided McGilberry, Ewing, and Select Specialty’s Chief Nursing Officer, Albert Spille, with her findings and recommendations. (McGilberry Dep., pp. 172-78; Mock Survey Findings, att. “C-9” to Williams Dec.; Ewing Dec.; White Dec.) Harris’ findings included, but were not limited to, a number of areas specifically within the purview of Select Specialty’s Quality Department. (McGilberry Dep., pp. 172-78; White Dep., pp. 128-32, Ex. “G;” Mock Survey Findings, att. “C-9” to Williams Dec.; Ewing Dec.; White Dec.) For example, Harris found McGilberry had not kept Select Specialty’s survey readiness notebook up-to-date in accordance with the “Select Model” for quality.4 (McGilberry Dep., pp. 172-78; Mock Survey Findings, att. “C-9” to Williams Dec.; Ewing Dec.; White Dec.) Because The Joint Commission and/or other surveyors can potentially appear on site at any time, McGilberry as the DQM was responsible for maintaining a binder with updated copies of Select Specialty’s information5 in the event of an unannounced survey. (McGilberry Dep., pp. 163-65; Ewing Dec.; White Dec.) However, McGilberry admitted to Harris that she had not kept the 3 Select Specialty had previously undergone a Joint Commission certification survey in 2013, prior to McGilberry’s employment. (Ewing Dep., p. 60-61, 120; Ewing Dec.) 4 In order to maximize efficiency and outcomes, Select Specialty trains and expects its employees to follow the “Select Model” for their respective positions, a clear set of processes and objectives that have been proven to be best practices through implementation and evaluation across the Select Medical network of affiliated facilities. (McGilberry Dep., pp. 206-09; Ewing Dec.; White Dec.) 5 Each year, The Joint Commission publishes a list of the information that will be requested during a survey in its annual Survey Activity Guide. (White Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 5 of 32 6 binder and associated documentation updated, with several items in the binder not having been updated since shortly after McGilberry’s hire in 2013. (McGilberry Dep., pp. 172-78; Mock Survey Findings, att. “C-9” to Williams Dec.; Ewing Dec.; White Dec.) Harris’ recommendations to correct the issues she noted during the mock survey were consistent with the Select Model and intended to prevent negative findings during an official survey. (McGilberry Dep., pp. 172-78; Mock Survey Findings, att. “C-9” to Williams Dec.; Ewing Dec.; White Dec.) As the person primarily responsible for “survey readiness,” McGilberry was expected to promptly address these concerns and communicate with Select Specialty leadership as needed to make the appropriate improvements. (Ewing Dec.; White Dec.) Throughout her findings and recommendations, Harris emphasized McGilberry’s role as the coordinator for survey readiness across all departments, repeatedly noting items for follow-up as involving both the particular department heads and McGilberry as the DQM. (McGilberry Dep., pp. 172-78; Mock Survey Findings, att. “C-9” to Williams Dec.; Ewing Dec.; White Dec.) While McGilberry was not expected to individually correct all of the findings, she was responsible for working closely with each department head to develop effective strategies to ensure compliance with applicable standards and for following up with those individuals to be sure the strategies were implemented and that Select Specialty was ready for a survey at all times. (White Dep., pp. 39-43, 164-67; Ewing Dep., pp. 127, 241-42; Ewing Dec.; White Dec.) Despite her participation in the mock survey and Harris’ recommendations, McGilberry was not prepared when The Joint Commission arrived to conduct an official survey in January 2016. (Ewing Dep., pp. 101-02, 115, 242; Ewing Dec.) The surveyor observed and interacted with Select Specialty patients and staff, reviewed Select Specialty records, and at the conclusion of the visit, provided McGilberry, Ewing, and Spille with a list of items that required correction Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 6 of 32 7 if Select Specialty wished to retain its Joint Commission accreditation. (McGilberry Dep., pp. 177-84; Ewing Dec.; White Dec.) During the survey, Ewing made several observations that led him to believe McGilberry was not following the Select Model regarding survey readiness. (Ewing Dec.) For example, rather than present the surveyors with a previously prepared binder of materials as required by the Select Model and recommended by Harris during the mock survey, McGilberry was disorganized and unprepared to respond to the surveyors’ document requests. (Ewing Dec.) Additionally, Select Specialty was cited by The Joint Commission for a number of issues previously identified by Harris during the mock survey that had not been corrected. (McGilberry Dep., pp. 177-84; The Joint Commission Survey Report, att. “C-10” to Williams Dec.; White Dep., pp. 124-25; Ewing Dec.; White Dec.) Again, while McGilberry was not responsible for individually making the corrections, as the DQM her job was to work with the department heads to be sure the corrections were actually made and ultimately she was responsible for not having done so. (White Dep., pp. 39-43, 164-67; Ewing Dec.; White Dec.) After receiving the survey findings and observing that McGilberry and Select Specialty were generally unprepared, Ewing prepared a sixty (60) day action plan and presented it to McGilberry on January 27, 2016. (McGilberry Dep., pp. 184-87; 60-Day Action Plan, att. “C- 11” to Williams Dec.; Ewing Dec.; White Dec.) Ewing implemented the action plan for McGilberry to guide her in coordinating Select Specialty’s response to the survey, including correcting the deficiencies and completing and submitting Select Specialty’s plan of correction to The Joint Commission as required. (Ewing Dec.; Ewing Dep., pp. 82; Ewing Dec.; White Dec.) The action plan was intended to ensure McGilberry followed the Select Model and completed Select Specialty’s response in a timely and efficient manner. (Ewing Dec.; White Dec.) While Ewing’s concerns regarding McGilberry’s performance arose from his own personal Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 7 of 32 8 observations on the day of The Joint Commission survey and the survey findings, he sought assistance from Debbie White (Caucasian female), Select Medical’s Regional Director of Quality Management (“RDQM”) assigned to support Select Specialty at that time,6 in identifying and drafting the content of the plan based on the Select Model for quality. (White Dep., pp. 54-59; Ewing Dec.; White Dec.) Consistent with the Select Model, the action plan required McGilberry to establish relationships and work closely with White and other regional and corporate leaders, as necessary, who could provide guidance and support to McGilberry as she worked to correct the deficiencies and get back “on Model.” (60-Day Action Plan, att. “C-11” to Williams Dec.; Ewing Dec.; White Dec.) A short while later, around February 8, 2016, White visited Select Specialty as part of a Hospital of Excellence validation visit.7 (McGilberry Dep., pp. 187-88, 202; White Dep., pp. 46- 48, 109-11; Ewing Dec.; White Dec.) While at Select Specialty, White identified several areas in which McGilberry needed to improve and realign with the Select Model to ensure that Select Specialty was providing quality care and was better prepared for future surveys. Notably, White confirmed that McGilberry had not updated the survey readiness note-books as required, despite Harris’ recommendations more than five (5) months before during the mock survey and the official Joint Commission survey in January 2016. (McGilberry Dep., pp. 202-09; White Dep., pp. 112-19; Email dated February 12, 2016, att. “C-12” to Williams Dec.; Ewing Dec.; White 6 As a Select Medical affiliated facility, Select Specialty and its management team members are provided with one- on-one support, coaching, and training on the Select Model through access to regional Select Medical employees responsible for answering questions and assisting Select Specialty in implementing the Select Model. (Ewing Dec.; White Dec.) When it became evident to Ewing after the January 2016 Joint Commission Survey that McGilberry was not following the Select Model, he contacted White, who had recently been assigned to support Select Specialty and McGilberry just prior to The Joint Commission survey, to work with McGilberry to get back “on Model.” (McGilberry Dep., p. 140; Ewing Dec.; White Dec.) 7 The Hospital of Excellence is an annual designation awarded by Select Medical to its highest-performing affiliated facilities. (McGilberry Dep., pp. 187-88, 202; White Dep., pp. 109-11; Ewing Dep., pp. 128-29; Ewing Dec.; White Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 8 of 32 9 Dec.) Additionally, during the weeks that followed, as White worked more regularly with McGilberry to oversee the corrections that were needed in response to The Joint Commission’s survey, White became increasingly concerned with McGilberry’s ability to effectively perform the responsibilities of the DQM position. (White Dec.) For example, an unusually significant amount of oversight was required by White to help McGilberry prepare the corrective action documentation for The Joint Commission. (Ewing Dep., pp. 119; Email dated March 10, 2016, att. “C-13” to Williams Dec.; 45-day Evidence of Standards Compliance Form, att. “C-14” to Williams Dec.; 60-day Evidence of Standards Compliance Form, att. “C-15” to Williams Dec.; Ewing Dec.; White Dec.) Primarily due to White’s guidance and direct involvement, Select Specialty was able to make the necessary corrections and retain its accreditation. (Ewing Dec.; White Dec.) Similarly, White worked with McGilberry regarding other basic responsibilities of her position that were not being completed, including maintaining detailed minutes for critical committees within the Hospital, (McGilberry Dep., pp. 210-15; White Dep., pp. 113-16; Email dated May 23, 2016, att. “C-16” to Williams Dec.; Ewing Dec.; White Dec.), escalating reporting of potential infection outbreaks, (Email dated June 15, 2016, att. “C-17” to Williams Dec.; Ewing Dec.; White Dec.), and entering important risk management documentation into Select Specialty’s electronic database, Lotus Notes. (McGilberry Dep., pp. 217-30; Email dated June 16, 2016, att. “C-18” to Williams Dec.; Ewing Dec.; White Dec.) White communicated her concerns regarding McGilberry’s performance both to McGilberry directly and to Ewing, McGilberry’s direct supervisor. (White Dep., pp. 61-64; Email dated February 12, 2016, att. “C-12” to Williams Dec.; Email dated March 10, 2016, att. “C-13” to Williams Dec.; Email dated May 23, 2016, att. “C-16” to Williams Dec.; Ewing Dec.; White Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 9 of 32 10 Ewing addressed continued areas of concern during McGilberry’s annual evaluation, completed on June 24, 2016. (Performance Evaluation, att. “C-19” to Williams Dec.; Ewing Dec.) At that time, Ewing was particularly concerned with McGilberry’s communication style and her general unpreparedness for the survey conducted earlier in the year, and documented his concerns in the evaluation. (Performance Evaluation, att. “C-19” to Williams Dec.; Ewing Dec.) Although Ewing found McGilberry to be a strong performer in other areas of her job and gave her an overall rating of “Full Contributor,” McGilberry failed to demonstrate improvement with regard to several key competencies of her position. (Ewing Dep., pp. 221-25; Ewing Dec.) In fact, despite White’s hands-on approach and near constant coaching, including sending McGilberry to be retrained at Select Medical’s corporate headquarters in June 2016, Ewing and White continued to identify additional concerns with McGilberry’s urgency, thoroughness, and overall work quality over the next several months. (White Dep., p. 98, 206-07; Ewing Dec.; White Dec.) For example, during a routine call on July 6, 2016, McGilberry advised White that she had not initiated the review of a mortality that occurred at Select Specialty on June 22, 2016. (McGilberry Dep., pp. 230-37; White Dep., pp. 61-64; Emails dated July 6, 2016, att. “C-20” to Williams Dec.; Ewing Dec.; White Dec.) As the DQM, McGilberry was responsible for initiating the review of all mortality events within twenty-four (24) hours of the event and completing the review process within seventy-two (72) hours. (McGilberry Dep., pp. 232-41; White Dep., pp. 61-64, 167-70; Ewing Dep., pp. 150-51; Emails dated July 6, 2016, att. “C-20” to Williams Dec.; Ewing Dec.; White Dec.) After the July 6, 2016 call with McGilberry, White reviewed Select Specialty’s mortality event records and discovered that McGilberry was not documenting mortality events in Lotus Notes as required. (McGilberry Dep., pp. 230-37; White Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 10 of 32 11 Dep., pp. 61-64, 171-82; Emails dated July 6, 2016, att. “C-20” to Williams Dec.; Ewing Dec.; White Dec.) As a result, the information was not made available to other departments for legal and risk-management purposes as required. (Ewing Dec.; White Dec.) Additionally, White discovered several other areas where McGilberry was not completing required tasks that contributed to her overall concerns regarding McGilberry’s ability to perform the functions of the DQM position. (McGilberry Dep., pp. 237-51; Emails dated July 6, 2016, att. “C-20” to Williams Dec.; Email dated July 8, 2016, att. “C-21” to Williams Dec.; Email dated July 11, 2016, att. “C-22” to Williams Dec.; Ewing Dec.; White Dec.) Again, White informed both McGilberry and Ewing, McGilberry’s supervisor, of her ongoing concerns. (Emails dated July 6, 2016, att. “C-20” to Williams Dec.; Email dated July 11, 2016, att. “C-22” to Williams Dec.; Ewing Dec.; White Dec.) At the same time, McGilberry’s working relationship with Spille, Select Specialty’s CNO was strained. (McGilberry Dep., pp. 191; White Dep., pp. 119-21; Ewing Dep., pp. 47-48, 88-89; Ewing Dec.; White Dec.) McGilberry expressed concerns that “[t]here were gray areas about who should report complaints and grievances” and asked White to “offer some assistance and correct that.” (McGilberry Dep., pp. 191-94; White Dep., pp. 119-21; White Dec.) According to McGilberry, White responded to her concerns by reiterating to Spille and others that any individual who receives a patient complaint should initiate Select Specialty’s complaint process.8 (McGilberry Dep., pp. 193-94; White Dep., pp. 102-08; Complaint and Greivance Process 8 McGilberry also claims she told White she felt she was being treated unfairly by Chandler because she had more work to do as the DQM than Spille who was the CNO. (McGilberry Dep., pp. 195-96.) According to McGilberry, she believes Ewing and Spille were friends because they ate breakfast and lunch together and that she didn’t fit in and was an outsider because of her race. (McGilberry Dep., pp. 195-97.) However, McGilberry admits she has no evidence of any race-based animus by Ewing other than her own conclusory and subjective belief. (McGilberry Dep., pp. 195-97.) White testified that McGilberry complained to her about communication issues and general frustrations regarding Spille but that McGilberry never told her that she was treated less favorably because of her race and/or sex. (White Dep, pp. 120-21, 147-48; White Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 11 of 32 12 Policy, att. “C-23” to Williams Dec.; White Dec.) White visited Select Specialty on August 4, 2016 and met with McGilberry, Spille, Ewing, and Select Specialty’s Human Resources Manager, Vicky Watson. (McGilberry Dep., pp. 252-55; Email dated August 5, 2016, att. “C-24” to Williams Dec.; Ewing Dec.; White Dec.) During that visit, White facilitated a discussion between McGilberry and Spille regarding their respective roles in an effort to resolve any conflicts. (McGilberry Dep., pp. 253-54; White Dep., pp. 138-42, 156-58; Email dated August 5, 2016, att. “C-24” to Williams Dec.; Ewing Dec.; White Dec.) White also met with McGilberry to review her progress with regard to her organizational systems and recordkeeping. (McGilberry Dep., pp. 252-55; Email dated August 5, 2016, att. “C-24” to Williams Dec.; Ewing Dec.; White Dec.) Rather than improvement, however, White identified additional work practices during the visit that required improvement. (McGilberry Dep., pp. 252-55, 258-59; Email dated August 5, 2016, att. “C-24” to Williams Dec.; Ewing Dec.; White Dec.) Then, on August 19, 2016, while reviewing mortality data for Select Specialty, White discovered that there was a discrepancy with regard to the number of deaths documented in Lotus Notes compared to the number of deaths reported in the Hospital’s Health Management System. (McGilberry Dep., pp. 260-70; Email dated August 19, 2016, att. “C-25” to Williams Dec.; Ewing Dec.; White Dec.) Again, despite being aware of the importance of maintaining accurate and timely mortality records, McGilberry continued to demonstrate poor work quality.9 (Ewing Dec.; White Dec.) Because McGilberry continued to struggle with routine parts of her job responsibilities, Ewing met with her on September 6, 2016 and advised her that she was being placed on a forty- 9 McGilberry was also responsible for preparing letters in response to grievances filed by patients or patient family members. (Ewing Dep., pp. 173-77; Ewing Dec.; White Dec.) Although she was provided with a template to follow outlining all of the information needed in the letter to be compliant with the Medicare Conditions of Participation, McGilberry continued to prepare the letters with missing information and did not follow the format she was instructed to use. (White Dep., pp. 148-49; Ewing Dep., pp. 173-77; Email dated August 23, 2016, att. “C-26” to Williams Dec.; Email dated August 31, 2016, att. “C-27” to Williams Dec.; Email dated September 2, 2016, att. “C- 28” to Williams Dec.; Email dated September 8, 2016, att. “C-29” to Williams Dec.; Ewing Dec.; White Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 12 of 32 13 five (45) day Performance Action Plan. (McGilberry Dep., pp. 270-80; Ewing Dep., pp. 170, 173-77; 45 Day Performance Action Plan, att. “C-30” to Williams Dec.; Ewing Dec.) Again, Ewing reached out to White for assistance regarding the content of the plan and ensuring the expectations set forth therein aligned with the Select Model for quality. (White Dep., pp. 53-54, 59-60, 88-90, 155-56; Ewing Dec.; White Dec.) During the meeting, Ewing advised McGilberry that her employment was in jeopardy unless she demonstrated prompt and sustained improvement with regard to the specific items documented in the action plan, which included the performance concerns identified above. (Ewing Dec.) McGilberry was offered a severance agreement in lieu of the final warning/action plan but declined, assuring Ewing she would improve her performance. (Ewing Dep., pp. 140-41; Ewing Dec.) However, only approximately one (1) month later, Ewing found that McGilberry had again failed to initiate and complete the mortality review process for two (2) patients in a timely manner. (White Dep., pp. 182-83, 199-200; Ewing Dec.; White Dec.; Email dated October 18, 2016, att. “C-31” to Williams Dec.) These patients expired on September 28, 2016 and October 5, 2016, respectively, but the mortality review process had not been completed for either event as of October 18, 2016.10 (Email dated October 18, 2016, att. “C-31” to Williams Dec.; Ewing Dec.; White Dec.) After confirming that McGilberry had again failed to timely initiate and complete mortality reviews, Ewing decided to terminate her employment based on her failure to meet the expectations of her position despite multiple opportunities to improve. (McGilberry Dep., pp. 10 Although McGilberry was away from Select Specialty during the week of October 10, 2016 through October 14, 2016 for both work and personal reasons, she was fully aware of the mortality review deadlines and failed to initiate and complete the reviews in a timely manner and failed to complete the reviews upon her return, despite having been repeatedly counseled regarding the importance of complying with the mortality review deadlines. (McGilberry Dep., pp. 287-92; Email dated October 18, 2016, att. “C-31” to Williams Dec.; Disciplinary Action Form, att. “C-6” to Williams Dec.; Ewing Dec.; White Dec.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 13 of 32 14 292-94; Ewing Dep., pp. 143-48; White Dep., p. 170, 200-02, 211-12, 217; Disciplinary Action Form, att. “C-6” to Williams Dec.; Ewing Dec.; White Dec.) Ewing consulted with Select Medical Regional Human Resources Director Tammy Sparks (African American female) and Select Medical Vice President David Goodson (Caucasian male) regarding his decision to terminate McGilberry’s employment based upon her unsatisfactory performance. (Ewing Dec.) On October 20, 2016, Ewing and Select Specialty’s Human Resources Manager, Vickie Watson (Caucasian female), met with McGilberry and advised her of the termination of her employment. (McGilberry Dep., pp. 291-96; Disciplinary Action Form, att. “C-6” to Williams Dec.; Ewing Dec.) In response to the termination of her employment, McGilberry initiated this litigation, claiming Select Specialty discriminated against her on the basis of her sex and/or race in violation of Title VII of the Civil Rights Act of 1964 and/or 42 U.S.C. § 1981 and that Select Specialty retaliated against her in violation of Title VII and Mississippi common law. Contrary to McGilberry’s allegations, Select Specialty has no record of her complaining of race or sex discrimination or any illegal activity during her employment. III. SUMMARY JUDGMENT STANDARD Summary judgment is warranted under Rule 56(a) of the Federal Rules of Civil Procedure when evidence reveals no genuine dispute regarding any material fact and that the moving party is entitled to judgment as a matter of law. The rule “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 14 of 32 15 U.S. 317, 322 (1986). “A complete failure of proof on an essential element of the non-moving party’s case necessarily renders all other facts immaterial.” Id. at 317. To defeat summary judgment, the non-moving party must go beyond the pleadings and designate “specific facts showing that there is a genuine issue for trial.” Id. at 324. Conclusory allegations, speculation, unsubstantiated assertions, and legalistic arguments are not an adequate substitute for specific facts showing a genuine issue for trial. TIG Ins. Co. v. Sedgwick James of Wash., 276 F.3d 754, 759 (5th Cir. 2002); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Factual controversies are only to be resolved in favor of the non-movant when “both parties have submitted evidence of contradictory facts.” Little, 37 F.3d at 1075. In responding to Select Specialty’s motion, McGilberry must produce “significant probative evidence” to support her claims. First Nat’l Bank of Comm. v. Monaco Agency, Inc., 911 F.2d 1053, 1057 (5th Cir. 1990) (“A mere scintilla of evidence in support of the plaintiff’s position is insufficient to survive summary judgment.”). IV. LEGAL ARGUMENT A. McGilberry’s claim of sex discrimination fails as a matter of law. 1. McGilberry’s burden. McGilberry claims, among other things, Select Specialty discriminated against her because of her sex (female). However, McGilberry cannot meet her burden to demonstrate genuine issues of material fact necessary to sustain her claims, and Select Specialty is entitled to judgment as a matter of law. An employee may establish a prima facie case of discrimination with either direct or circumstantial evidence. See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 426 (5th Cir. 2000). McGilberry can offer no direct evidence of discrimination; therefore, the Court must Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 15 of 32 16 apply the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), under which the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 411-12 (5th Cir. 2007). To establish a prima facie case of employment discrimination, McGilberry must show: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) she was replaced by someone outside her protected group or was treated less favorably than other similarly situated employees outside the protected group, under nearly identical circumstances. Warren v. Fed. Nat’l Mortgage Assoc., 733 F. App’x 753, 760 (5th Cir. 2018) (citing McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007)); Lee v. Kansas City S. Ry., 574 F.3d 253, 259 (5th Cir. 2009) (citing McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817). Only if McGilberry is able to make this prima facie showing does the burden shift to Select Specialty to offer a legitimate, nondiscriminatory reason for terminating McGilberry’s employment. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). Importantly, Select Specialty’s burden is one of production only, not persuasion. O’Brien v. Lucas Assoc., 127 F. App’x 702, 705 (5th Cir. 2005). The Fifth Circuit instructs that, when an employer provides an explanation for its actions, which demonstrates that it was not motivated by a plaintiff’s protected characteristic, then an adverse employment action is not unlawful, even if it appears to be unfair. See Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir. 1994). Once Select Specialty articulates its nondiscriminatory reasons, any inference of discrimination created by the prima facie case disappears. Wakefield v. State Farm, Ins., 229 F.3d 1148, (5th Cir. 2000). McGilberry must then create a genuine issue of material fact that Select Specialty’s reasons are “false and merely pretext for discrimination, or that while Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 16 of 32 17 [Select Specialty’s] reason is true, it is only one of the reasons for its conduct, and another motivating factor is [McGilberry’s] protected characteristic.” Warren, 733 F. App’x at 760 (citing Burrell, 482 F.3d at 411-12). 2. McGilberry cannot establish a prima facie case of sex discrimination. Here, McGilberry cannot meet her prima facie burden because she cannot demonstrate a genuine issue of material fact regarding the fourth prong11 – whether McGilberry was replaced by someone outside her protected group or was treated less favorably than other similarly situated employees outside the protected group. Indeed, the individual Select Specialty hired to replace McGilberry as DQM is also female. (McGilberry Dep., p. 366.) Moreover, McGilberry cannot demonstrate that any similarly situated male was not discharged under nearly identical circumstances. Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 514 (5th Cir. 2001). Importantly, McGilberry admits she has no personal knowledge that she was treated less favorably than any other DQM. (McGilberry Dep., pp. 266-69.) Despite her sworn deposition testimony, it is anticipated McGilberry will argue that Keith Parker, an individual previously employed by Select Specialty as the DQM, was treated more favorably because he is male. However, Parker is not a proper comparator. Parker, who was supervised in his role as the DQM by Ewing for only three (3) months, did not have the same or similar history of admitted performance deficiencies, counseling, and discipline as McGilberry. (Ewing Dep., pp. 13, 61-62; Parker Dep., pp. 57-61, 86-88; Ewing Dec.) Moreover, the undisputed evidence demonstrates he was treated no more favorably than McGilberry. Parker testified that as the DQM he was responsible for maintaining a survey readiness notebook and 11 Importantly, with regard to the third prong of McGilberry’s prima facie burden – that she suffered an adverse employment action – while McGilberry complains that she was given more work, less assistance, and more “write- ups” than others, (McGilberry Dep., pp. 196-97, 234-37), the only adverse employment action at issue sufficient to satisfy McGilberry’s burden to show intentional discrimination is the termination of her employment. See Stroy v. Gibson on behalf of Dep't of Veterans Affairs, 896 F.3d 693, 699 (5th Cir. 2018). Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 17 of 32 18 ensuring Select Specialty was always in a constant state of readiness for any inspection. (Parker Dep., pp. 30-33, Ex. “E.”) According to Parker, like McGilberry, he participated in periodic mock surveys and worked closely with the RDQM assigned to Select Specialty to ensure he was performing the responsibilities and meeting the expectations of the DQM position. (Parker Dep., pp. 34-37, 86.) Parker testified that, like McGilberry, he was responsible for coordinating Select Specialty’s response to The Joint Commission after a survey and that was required to work with each department head to develop an action plan. (Parker Dep., pp. 37-40.) Additionally, Parker testified that he was responsible for entering data into Lotus Notes and for completing mortality reviews and that he had one (1) part-time employee available to assist him. (Parker Dep., pp. 51- 60.) Importantly, unlike McGilberry, there is no evidence Parker failed to meet the expectations of his position.12 (Parker Dep., pp. 57-62.) It is further anticipated McGilberry will claim Spille, Select Specialty’s CNO at the time, was treated more favorably because he is male. However, Spille is not a proper comparator as it is undisputed that he and McGilberry held different positions with different responsibilities.13 In the Fifth Circuit, the requisite “[nearly identical] circumstances exist when ‘the employees being compared held the same job or responsibilities, shared the same supervisor or had their employment status determined by the same person, and have essentially comparable violation histories.’” Morris v. Town of Independence, 827 F.3d 396, 402 (5th Cir. 2016) (quoting Lee, 574 F.3d at 259-60). According to McGilberry, the DQM and CNO positions are intended to 12 Notably, while Select Specialty was cited for deficiencies by The Joint Comission during a survey in early 2013, Parker was not employed by Select Specialty as the DQM at that time. (Ewing Dec.; Ewing Dep., p. 60-61, 120.) Rather, Parker tendered his resignation on November 28, 2012 after accepting another opportunity. (Id.) Parker’s last day as DQM was December 21, 2012. (Id.) 13 McGilberry complains that Spille was not issued an action plan related to Select Specialty’s performance during the 2016 Joint Commission survey and that she felt she was given more work than Spille. (McGilberry Dep., pp. 196-97.) However, as discussed herein, such complaints do not rise to the level of “ultimate employment decisions” and therefore cannot form the basis of McGilberry’s prima facie case. Stroy, 896 F.3d at 699. Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 18 of 32 19 work closely together to accomplish their respective objectives. (McGilberry Dep., pp. 195-96, 216-17.) However, McGilberry admits her position as the DQM was unique in that, unlike other members of Select Specialty’s leadership team, she was responsible for coordinating many different departments touching on virtually every area of the hospital. (McGilberry Dep., pp. 377-78; Ewing Dec.; White Dec.) While she and Spille may have worked closely together, it is undisputed that they had distinct duties and responsibilities. (DQM Job Description, att. “C-7” to Williams Dec.; Chief Nursing Officer Job Description, att. “C-32” to Williams Dec.; Ewing Dec.; White Dec.) Significantly, Ewing treated Spille the same as he treated McGilberry. Like McGilberry, Spille was also continuously coached and counseled regarding areas of needed improvement. (Ewing Dep., pp. 33-34, 66, 206-11; Ewing Dec.) Ultimately, when Spille failed to improve, he, like McGilberry, was presented with a final warning and offered a severance by Ewing. (Ewing Dep., p. 37-42, 212; Ewing Dec.) While Spille chose to accept the severance offer rather than attempt to improve his performance, (Ewing Dep., p. 50, 206; Ewing Dec.) Ewing and Select Specialty treated him no more favorably than McGilberry. (Ewing Dec.) As such, McGilberry’s arguments in this regard miss the mark and are insufficient to satisfy her prima facie burden. Because McGilberry cannot demonstrate that any similarly situated male was treated more favorably under nearly identical circumstances, her claim of sex-based discrimination fails at the prima facie stage and Select Specialty is entitled to judgment as a matter of law. 3. McGilberry cannot rebut Select Specialty’s legitimate, non-discriminatory reasons for terminating her employment. Further, even assuming arguendo McGilberry could make out a prima facie case of discrimination based on sex, which Select Specialty denies, McGilberry cannot demonstrate that Select Specialty’s legitimate, non-discriminatory reasons for terminating her employment were Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 19 of 32 20 merely pretext for intentional discrimination. McGilberry’s employment was terminated for poor performance after she repeatedly failed to meet the expectations of her position, despite significant coaching and multiple opportunities to improve. Importantly, McGilberry admits she failed to meet the expectations of her position, including repeatedly failing to prioritize and complete mortality reviews and other required tasks. (McGilberry Dep., pp. 202-09, 226-35, 240- 47, 251, 260-66, 323; Emails related to McGilberry’s performance, att. “C-12,” “C-13,” “C-16,” “C-17,” “C-18,” “C-20,” “C-21,” “C-22,” “C-24,” “C-25,” “C-26,” “C-27,” “C-28,” “C-29,” “C- 30” to Williams Dec.) McGilberry testified that she felt based on her own opinion that many of the things she was coached to do to comply with the Select Model were not important and that she followed the Select Model only when she “had the time.” (McGilberry Dep., pp. 207-08, 228, 232, 250-51, 255-56.) However, Select Specialty, not McGilberry sets the expectations of the DQM position and McGilberry’s disagreement with Select Specialty’s decisions, or even her subjective belief that Select Specialty’s actions were discriminatory, is insufficient to sustain a claim of intentional discrimination. As the Fifth Circuit has repeatedly held, such second-guessing of Select Specialty’s business decisions without evidence of discriminatory animus is simply improper. See Waggoner v. City of Garland, Tex., 987 F.2d 1160, 1165 (5th Cir. 1993) (explaining that our discrimination laws were not intended to become vehicles for judicial second-guessing of business decisions, nor were they intended to transform courts into personnel managers); Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1508 (5th Cir. 1988) (observing that discrimination laws cannot protect workers from erroneous or even arbitrary personnel decisions, but only from decisions which are unlawfully motivated); Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir. 2002) (“Merely disagreeing with an employer's negative Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 20 of 32 21 performance assessment is insufficient to show pretext.”); Little v. Republic Refining Co., 924 F.2d 93, 97 (5th Cir. 1991) (“even an incorrect belief that an employee’s performance is inadequate” is a legitimate reason). Remarkably, McGilberry testified she viewed her position at Select Specialty as a “cushiony job,” (McGilberry Dep., p. 107), and her repeated attempts to shift her responsibilities to others and failure to prioritize and complete expected tasks plainly demonstrate her refusal to meet Select Specialty’s clear expectations for the position. Further, the same individual who ultimately decided to terminate McGilberry’s employment for failing to meet expectations, Chandler Ewing, is the same individual who made the decision to hire McGilberry for the position. (McGilberry Dep., pp. 102, 124-25, 143-47, 292-95; Ewing Dec.) Whereas Ewing was fully aware of McGilberry’s sex and race at the time he hired McGilberry, it is illogical to now contend he bore animus against her because of her sex and/or race. Accordingly, there is an inference that Ewing did not terminate McGilberry’s employment because of her sex and/or race. See Brown v. CSC Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996) (expressing approval for “same actor” inference in situations where the individual who allegedly discriminated against plaintiff was the same individual who hired plaintiff, creating an inference that discrimination was not the motive behind plaintiff’s termination), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). Importantly, McGilberry admits her belief that she was discriminated against is based solely because on her own subjective belief, speculation, conjecture, and conclusory allegations, none of which is sufficient to prevent summary judgment. (McGilberry Dep., pp. 196-97); see TIG Ins. Co., 276 F.3d at 759; Little, 37 F.3d at 1075. Because McGilberry cannot offer actual Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 21 of 32 22 evidence demonstrating that Ewing and Select Specialty were motivated by discriminatory animus to terminate her employment, her claims fail and summary judgment is appropriate. B. McGilberry’s claim of race discrimination fails as a matter of law. Additionally, McGilberry claims Select Specialty discriminated against her because of her race (African American). The rubric of analysis for Title VII claims is the same regardless of whether the plaintiff brings a race- or sex-based discrimination claim. Additionally, “[t]he summary-judgment test for discrimination claims under § 1981 . . . is the same as the test for discrimination claims under Title VII.” Patel v. Midland Mem’l Hosp. & Med. Ctr., 298 F.3d 333, 342 (5th Cir. 2002) (citing Pratt v. City of Houston, 247 F.3d 601, 605 n. 1 (5th Cir. 2001)). Accordingly, Select Specialty adopts and incorporates by reference as if fully restated herein its argument and authorities regarding McGilberry’s burden to prove intentional race-based discrimination as set forth in Section IV(A) supra. Whereas the individual hired as DQM after McGilberry’s termination is a Caucasian female, Select Specialty assumes without admitting, for purposes of the instant motion for summary judgment only, that McGilberry can meet her prima facie burden with regard to her claim of wrongful termination based on racial discrimination. However, even so, her claims still fail. As discussed above herein, McGilberry cannot identify any individual who was treated more favorably under nearly identical circumstances. See Section IV(A)(2). Moreover, McGilberry cannot demonstrate Select Specialty’s legitimate non-discriminatory reasons for terminating her employment are merely pretext for intentional discrimination. See Section IV(A)(3). As with her claim of sex-based discrimination, McGilberry cannot meet her burden to demonstrate genuine issues of material fact, and Select Specialty is entitled to judgment as a matter of law. Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 22 of 32 23 C. McGilberry’s claim of retaliation pursuant to Title VII fails as a matter of law. As with her claims of discrimination, McGilberry can offer no direct evidence of retaliation, and thus her Title VII retaliation claim must also be evaluated under the familiar McDonnell Douglas burden-shifting framework. Davis v. Fort Bend Cty., 765 F.3d 480, 489 (5th Cir. 2014) cert. denied sub nom. Fort Bend Cty., Tex. v. Davis, 135 S. Ct. 2804, 192 L. Ed. 2d 847 (2015). “A Title VII retaliation [claimant] must establish that: (1) the employee engaged in activity protected by Title VII; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between that protected activity and the adverse employment action.” Zamora v. City Of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (quotation marks and citation omitted). If Select Specialty is able to articulate a legitimate, non-retaliatory reason for the employment action, McGilberry must prove that Select Specialty’s proffered reason is pretext for a retaliatory purpose. Aryain v. Wal–Mart Stores of Tex., L.P., 534 F.3d 473, 484 (5th Cir. 2008). Importantly, to succeed in preventing summary judgment, McGilberry must prove “the adverse employment action taken against [her] would not have occurred ‘but for’ her protected conduct.” Septimus v. Univ. of Houston, 399 F.3d 601, 608 (5th Cir. 2005); see also Zamora, 798 F.3d at 331 (“[A claimant] asserting a Title VII retaliation claim must meet a higher standard of causation. Such a [claimant] ‘must establish that his or her protected activity was a but-for cause of the alleged adverse action by the employer.’”) (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, –––U.S. ––––, 133 S. Ct. 2517, 2534, 186 L. Ed. 2d 503 (2013)). Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 23 of 32 24 McGilberry cannot show any causal connection at all between any purported protected activity and the termination of her employment, much less the requisite “but for” causation.14 First, even if McGilberry engaged in any protected activity, which Select Specialty denies, she can offer no evidence that Chandler Ewing, who made the decision to terminate her employment, was aware of any such protected activity at the time he decided to terminate her employment for failing to meet performance expectations. (Ewing Dec.) McGilberry admits she received a copy of Select Specialty’s policies prohibiting discrimination and retaliation and that she was aware of multiple avenues available for her to report a problem with her employment, including reporting issues anonymously to Select Specialty’s parent corporation through a complaint hotline. (McGilberry Dep., pp. 147-55.) Nevertheless, McGilberry admits she never made any report to the corporate hotline that she felt she was being discriminated based on her sex and/or race or that she believed she was being retaliated against prior to the termination of her employment. (McGilberry Dep., pp. 148-49, 156-60.) According to McGilberry, she did not use the corporate hotline or other avenues to report her belief of unfair treatment. Instead, she testified that she told Debbie White during a visit by White to Select Specialty in February 2016 that relationships were “strained,” that there were “gray areas” regarding the roles of the DQM and CNO regarding patient complaints and grievances, and that she felt she was being treated unfairly because she was required to do things 14 While the burden to prove adverse employment action in the context of a claim of retaliation is different from the ultimate employment action standard of intentional discrimination claims, McGilberry must still demonstrate that Select Specialty took action against her that was “materially adverse” in order to sustain a claim of unlawful retaliation. Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015). Here, McGilberry’s allegations that Select Specialty enforced its policies, required her to perform the functions of her position, and held her accountable for her admitted failure to meet the expectations of her position by coaching and counseling her to improve are not “materially adverse” employment actions and cannot form the basis of her retaliation claim. See Turner v. Se. Freight Lines, Inc., 2015 WL 4077498, at *9, n.6 (S.D. Miss. July 6, 2015) (citing Earle v. Aramark Corp., 247 F. App’x 519, 524 (5th Cir. 2007) (per curiam) (observing that “disciplinary write-ups” and “micro-managing” are not “materially adverse employment actions”); Robinson v. Our Lady of the Lake Reg’l Med. Ctr., Inc., 535 F. App’x 348, 351 (5th Cir. 2013) (additional citations omitted)). Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 24 of 32 25 as the DQM that Al as the CNO was not. (McGilberry Dep., pp. 190-98.) With regard to her relationships with Spille and Ewing, McGilberry testified, “I don’t fit into that category and I felt like it was race related and I’m just not a fit in with that group.” (McGilberry Dep., p. 195.) McGilberry admits, however, that she has no evidence that she was treated less favorably because of her race.15 (McGilberry Dep., pp. 195-97.) Importantly, McGilberry has offered no evidence whatsoever, nor can she, that White ever communicated any such concerns to Ewing or that he was aware of any complaints by McGilberry that she was being discriminated against on the basis of her race, sex, or any other protected characteristic. (White Dec.; Ewing Dec.) Indeed, White testified that McGilberry never told her she felt she was treated less favorably because of her race and/or sex. (White Dep., pp. 120-21, 148; White Dec.) Similarly, Ewing testified that he had no knowledge of any complaint by McGilberry to anyone that she felt she was being discriminated against because of her race and/or sex or any other protected characteristic. (Ewing Dec.) Again, when questioned as to why she believes she was retaliated against, McGilberry cites only her own subjective belief based on speculation, conjecture, and conclusory allegations, none of which is sufficient to prevent summary judgment. (McGilberry Dep., pp. 189-90, 247-50); see TIG Ins. Co., 276 F.3d at 759; Little, 37 F.3d at 1075. D. McGilberry’s claim of wrongful termination under Mississippi common law fails as a matter of law. Lastly, McGilberry’s claim that she was terminated for reporting and/or opposing criminally illegal conduct is entirely without merit and due to be dismissed. McGilberry alleges wrongful termination in violation of Mississippi common law. However, it is undisputed that 15 McGilberry also testified that she told White she felt she was being retaliated against by Ewing for reporting issues she had with Spille’s performance. (McGilberry Dep., pp. 189-94, 300-02.) Importantly, complaining about a coworker’s performance is not activity protected by Title VII. Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 25 of 32 26 McGilberry was at all times an at-will employee. (McGilberry Dep., pp. 144-47; Ewing Dec; Excerpts of Employee Handbook, att. “C-1” to Williams Dec.; Offer of Employment, att. “C-5” to Williams Dec.) Pursuant to Mississippi’s at-will employment doctrine, “an employer may terminate an employee at any time for a good reason, a wrong reason, or no reason at all.” Senseney v. Miss. Power Co., 914 So. 2d 1225, 1228 (Miss. Ct. App. 2005). In McArn v. Allied Bruce-Terminix Co. Inc. the Mississippi Supreme Court created a “narrow public policy exception,” allowing an at-will employee to bring a wrongful termination action if she was discharged for “refus[ing] to participate in an illegal act” or for “reporting illegal acts of h[er] employer.” 626 So. 2d 603, 607 (Miss. 1993) (emphasis added). “Significantly, an illegal act, in the context of McArn, is one which necessarily ‘warrant[s] the imposition of criminal penalties, as opposed to mere civil penalties.’” Nicholson v. Rotech Healthcare, Inc., 2007 WL 1657412, at *1 (N.D. Miss. June 4, 2007) (quoting Hammons v. Fleetwood Homes, 907 So. 2d 357, 360 (Miss. 2004) (further citation omitted)). An employee bringing a McArn claim must “state with specificity the illegal conduct, point to evidence of record to support his allegations, and describe how that conduct violated a criminal statute.” White v. Cockrell, 2015 Miss. App. LEXIS 653 (Dec. 8, 2015) (citation omitted). “[T]o succeed under the illegal-act exception [to Mississippi’s at-will employment doctrine], a terminated employee must have reported conduct that is actually illegal.” Vaughan v. Carlock Nissan of Tupelo, Inc., 553 F. App’x 438, 441 (5th Cir. 2014) (emphasis added) (citing Wheeler v. BL Dev. Corp., 415 F.3d 399, 401 (5th Cir. 2005)). Importantly, “[a] terminated employee’s ‘attempt to equate an employee’s ‘good faith effort’ in reporting illegal activity, which is protected under the common law exception, with a good faith belief that illegal activity is taking place is misplaced.” Id. (citation omitted). McGilberry cannot identify any Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 26 of 32 27 conduct by Select Specially that would actually violate any criminal law, and her claims therefore fail as a matter of law. McGilberry claims in her Amended Complaint that she was terminated “because she sought redress for Select’s violations of Mississippi’s statutes for Medical Assistance for the Aged [Medicaid], Vulnerable Person Act, and/or seeking to protect the health, safety and welfare of the patients as Select’s Jackson facility.” [32.] However, McGilberry testified she does not know what the Vulnerable Person’s Act is and could not say that she had any reason to believe Select Specialty violated the Vulnerable Person’s Act, Mississippi’s Medicaid regulations, or any other statute. (McGilberry Dep., p. 310.) The Mississippi Supreme Court and other courts have held that a plaintiff must demonstrate she reported and/or opposed conduct because it was illegal in order to invoke the public policy exception to the doctrine of employment at-will. See Jones v. Fluor Daniel Servs. Corp., 959 So. 2d 1044, 1048 (Miss. 2007); see also Crawford v. Bannum Place of Tupelo, 2013 WL 104963, at *6 (“As made clear in Jones, the Plaintiff must report the activity because of its illegal nature. This Court thus determines that a Plaintiff must also choose to refrain from a given action because of its illegal nature.”) (N.D. Miss. Jan. 8, 2013), aff’d, 556 F. App’x 279 (5th Cir. 2014). Accordingly, McGilberry’s claims fail as a matter of law. Additionally, McGilberry’s claims fail based on her sworn testimony that she has no knowledge of, and never reported, any criminally illegal activity by Select Specialty: Q. Ms. McGilberry, that is my exact question. Did anybody do anything at Select that you believed to be unlawful, that you thought would be illegal? A. Did they actually do it? Q. Yes. A. No. Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 27 of 32 28 Q. Did you report to anyone that somebody at Select did something that was criminally illegal? A. No, I did not. (McGilberry Dep., p. 299) (emphasis added). While she admits she was not aware of and did not report any criminally illegal conduct, McGilberry claims she opposed a proposal by Ewing to pay a former patient’s insurance premium and to waive his deductible in response to a complaint by the patient’s family member because she believed it would be illegal to do so and that she reported the issue to an attorney employed by Select Medical. (Ewing Dep., pp. 198-203; Emails dated August 11, 2016, att. “C- 33” to Williams Dec.) McGilberry testified she believed such actions would have been illegal if taken by Select Specialty because “[i]t’s considered as an inducement . . . .” (McGilberry Dep., p. 302.) McGilberry further testified she believes such action would violate “CMS regulations” which govern Medicare and were additionally impermissible because the patient had been discharged. (McGilberry Dep., p. 303.) However, McGilberry has not identified any specific statute and/or regulation that she believes would have been violated by these proposed actions, much less any potential criminal penalties. It is anticipated McGilberry may argue the alleged acts are violations of the federal Beneficiary Inducement Statute, also known as the Civil Monetary Penalties Law, 42 U.S.C. § 1320a-7a. However, her claims fail as violations of the Beneficiary Inducement Statute are limited to monetary penalties and/or exclusion from participation in federal and/or state health care programs. 42 U.S.C. § 1320a-7a. Violations of the Beneficiary Inducement Statute warrant only civil and not criminal penalties; therefore, any claim of wrongful termination based on an alleged violation thereof fails as a matter of law and must be dismissed with prejudice. Hammons, 907 So. 2d at 360 (“Applicability of the exception . . . require[s] that the acts Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 28 of 32 29 complained of warrant the imposition of criminal penalties, as opposed to mere civil penalties.”) (citing Howell v. Operations Mgmt. Intern., Inc., 161 F.Supp.2d 713, 719 (N.D. Miss. 2001)). Moreover, even if criminal penalties were available for violations of the Beneficiary Inducement Statute, there is no evidence that the alleged action would violation the statute. McGilberry does not dispute that the patient at issue was not a beneficiary of Medicare, Medicaid, or any other federally funded healthcare program. (McGilberry Dep., pp. 81-82, 302- 03; Ewing Dec.) Rather, it is undisputed that the patient at issue was eligible for continuation of employer-provided health insurance benefits pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”) and, thus, privately insured. (Ewing Dec.) Accordingly, the Beneficiary Inducement Statute is inapplicable as its prohibitions are limited to payments affecting beneficiaries of Medicare and state health care programs. See generally 42 U.S.C. § 1320a-7a(a)(5). Similarly, it is anticipated that McGilberry may argue the circumstances at issue would have violated the federal Anti-Kickback Statute, 42 U.S.C. § 1320a-7b, and/or Mississippi’s Medicaid Fraud Control Act, MISS. CODE § 43-13-207. Like the Beneficiary Inducement Statute, though, these provisions are inapplicable to individuals who are not beneficiaries of federally and/or state funded healthcare benefits. The Anti-Kickback Statute is limited to situations involving goods, facilities, services, or items for which “payment may be made in whole or in part under a Federal health care program,”16 42 U.S.C. § 1320a-7b(b)(2), and the Medicaid Fraud Control Act is likewise limited to situations involving goods or services “for which payment is or may be made in whole or in part pursuant to the Medicaid program . . . .” MISS. CODE § 43-13-207. Whereas it is undisputed the patient at issue here was not a beneficiary 16 See also 42 U.S.C. § 1320a-7b(f). Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 29 of 32 30 of Medicare, Medicaid, or any other federal or state health care program, McGilberry’s claim fails as a matter of law. (Ewing Dec.) Additionally, McGilberry’s claims fail because there is no evidence whatsoever that the situation at issue involved referrals of any kind or any inducement or reward for any good, service, facility, or item payable in whole or in part by any federal or state health care program. Select Specialty additionally anticipates McGilberry may claim she was wrongfully terminated because she brought patient complaints to Select Specialty’s attention and for reporting that Spille and/or others at Select Specialty did not document patients’ complaints and grievances and report them to McGilberry. However, as the DQM, McGilberry was required to bring patient complaints to Select Specialty’s attention, and it is nonsensical to contend Select Specialty terminated her employment for fulfilling the requirements of the position for which she was hired by Select Specialty to do.17 (McGilberry Dep., p. 296; Director of Quality Management Job Description, att. “C-7” to Williams Dec.; Ewing Dec.) Further, even assuming arguendo McGilberry’s claims regarding Spille’s and/or others’ alleged failure to timely report these issues to her were true, McGilberry cannot demonstrate that such conduct is criminally illegal and therefore she cannot rely on any alleged reporting thereof to sustain her claim of wrongful termination under Mississippi law. Hammons, 907 So. 2d at 360. McGilberry admitted as much when she testified that she had no knowledge that any person at Select Specialty committed any criminally illegal act during her employment and that she never reported that anyone at Select Specialty had committed criminally illegal acts. (McGilberry Dep., p. 299.) 17 Moreover, as discussed at length herein, McGilberry cannot demonstrate she ever reported any criminally illegal conduct prior to the termination of her employment. (McGilberry Dep., p. 299.) Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 30 of 32 31 The Mississippi Supreme Court and other courts have held that a plaintiff must demonstrate she reported and/or opposed conduct because it was illegal in order to invoke the public policy exception to the doctrine of employment at-will. Jones, 959 So. 2d at 1048; see also Crawford, 2013 WL 104963, at *6 (“As made clear in Jones, the Plaintiff must report the activity because of its illegal nature. This Court thus determines that a Plaintiff must also choose to refrain from a given action because of its illegal nature.”), aff’d, 556 F. App’x 279 (5th Cir. 2014). Here, it is clear that McGilberry neither opposed nor reported any criminally illegal conduct related to Select Specialty’s business, does not believe any such conduct occurred, and that indeed there was no such conduct to report or oppose. Accordingly, McGilberry’s wrongful termination claim fails as a matter of law, and Select Specialty is entitled to summary judgment. V. CONCLUSION Based on the undisputed material facts and authority applicable to this cause of action, as fully argued herein, there are no genuine issues of material fact that necessitate a trial. Select Specialty terminated McGilberry’s employment because she failed to meet the expectations of her position, despite near constant coaching and multiple opportunities for improvement. McGilberry cannot show that she was treated less favorably than any similarly situated person outside the protected classes under nearly identical circumstances. Additionally, McGilberry cannot demonstrate that Select Specialty retaliated against her for any activity protected by either state or federal law and cannot demonstrate that Select Specialty’s reasons for terminating her employment were mere pretext for intentional discrimination and/or retaliation. Accordingly, Select Specialty respectfully requests summary judgment in its favor on all claims under Rule 56 of the Federal Rules of Civil Procedure and dismissal of this action with prejudice. THIS, the 19th day of October, 2018. Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 31 of 32 32 SELECT SPECIALTY HOSPITAL – JACKSON, INC. Defendant By: /s/ Blythe K. Lollar __________________ Blythe K. Lollar (MS Bar No. 104554) blythe.lollar@ogletreedeakins.com Robin Banck Taylor (MS Bar No. 100195) Robin.taylor@ogletreedeakins.com Timothy W. Lindsay (MS Bar No. 1262) timothy.lindsay@ogletreedeakins.com OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 207 West Jackson Street, Suite 200 Ridgeland, Mississippi 39157 Telephone: (601) 360-8444 Facsimile: (601) 360-0995 ATTORNEYS FOR DEFENDANT CERTIFICATE OF SERVICE I, Blythe K. Lollar, attorney for the Defendant, certify that I electronically filed the foregoing with the Clerk of the Court using the ECF system which sent notification to the following: Lisa M. Ross Post Office Box 11264 Jackson, MS 39283-1264 ATTORNEY FOR THE PLAINTIFF THIS, the 19th day of October, 2018. /s/ Blythe K. Lollar _____ Blythe K. Lollar 35727180.1 Case 3:17-cv-00289-TSL-LRA Document 61 Filed 10/19/18 Page 32 of 32