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Lipka v. Advantage Health Group, Inc.

United States District Court, Tenth Circuit

September 20, 2013

Trina Lipka, Plaintiff,
v.
Advantage Health Group, Inc.; Superior Senior Living, Inc.; Norm Wilcox; and Kathy Wilcox, Defendants.

MEMORANDUM & ORDER

JOHN W. LUNGSTRUM, District Judge.

Plaintiff Trina Lipka filed suit against defendants alleging that defendants unlawfully terminated her employment in violation of the whistleblower provisions of the False Claims Act, 31 U.S.C. § 3730(h), and in violation of the public policy of the State of Kansas. This matter is presently before the court on defendants' motion to dismiss plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (doc. 16). As set forth in more detail below, the motion is granted in part and denied in part.

I. Standard

Defendants' motion to dismiss is based on Federal Rule of Civil Procedure 12(b)(6). In analyzing the motion, the court accepts as true "all well-pleaded factual allegations in the complaint and view[s] them in the light most favorable to the plaintiff." Burnett v. Mortgage Elec. Registration Sys., Inc., 706 F.3d 1231, 1235 (10th Cir. 2013) (citation omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting 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 plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Free Speech v. Federal Election Comm'n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

II. Background

The following well-pleaded allegations, taken from plaintiff's first amended complaint, are accepted as true for purposes of defendants' motion. Defendants Norm and Kathy Wilcox own and operate defendants Advantage Health Group, Inc. and Superior Senior Living, Inc. which, in turn, provide financial and managerial support to The Gables at Overland Park Assisted Living Facility ("Gables"). On January 2, 2013, defendants, operating as a joint enterprise, hired plaintiff Trina Lipka as the Director of Nursing at Gables. As the Director of Nursing, plaintiff was responsible for the oversight of all the certified medication aides and certified nursing assistants employed at Gables by defendants.

On March 28, 2013, plaintiff was accompanied by Dr. Thomas Williams while she conducted her weekly check on sick patients throughout the Gables facility. While on "rounds, " Dr. Williams instructed plaintiff to obtain a urine specimen for a patient and have it evaluated through the laboratory. Later that day, plaintiff contacted Heartland Health Laboratories ("Heartland") to inquire whether Gables could obtain urine samples for testing under the Clinical Laboratory Improvement Amendments of 1988 (CLIA), 42 U.S.C. § 263a. She also inquired about Gables' compliance with CLIA with respect to staff obtaining blood samples by use of finger sticks to be tested via glucometer. According to plaintiff's complaint, Congress enacted CLIA to ensure the accuracy and reliability of all laboratory testing.[1] The statute contains a waiver procedure for those laboratories which only perform simple examinations and procedures having "an insignificant risk of an erroneous result." Id. § 263a(d)(2) and (3). A representative of Heartland advised plaintiff that Gables needed a CLIA waiver for its staff to obtain blood samples by use of finger sticks to be tested via glucometer. There are no other allegations in plaintiff's complaint concerning Gables' ability to obtain urine samples under CLIA.

Plaintiff then researched the website of the Centers for Medicare and Medicaid Services (the federal agency charged with ensuring compliance with CLIA mandates) to determine whether Gables had a CLIA waiver to obtain blood samples for testing via glucometer. Based on her research, plaintiff did not believe that Gables had a CLIA waiver. On March 29, 2013, plaintiff sent an email to Kansas Health and Environment Laboratories (KHEL), the state agency responsible for administering the CLIA program, asking whether the Gables staff could obtain blood samples by use of finger sticks to be tested via glucometer when the facility did not have a CLIA waiver. The following day, KHEL responded to the email and informed plaintiff that Gables was required to possess a CLIA waiver in order for its staff to use finger sticks for obtaining blood samples to be tested via glucometer. At that point, plaintiff informed the medical technician at Gables that Gables was required to possess a CLIA waiver for its staff to be able to obtain blood samples via finger sticks and that she did not want staff members obtaining blood samples until CLIA compliance was established. Defendant Kathy Wilcox instructed the medical technician to continue to obtain blood samples via finger sticks.

On April 1, 2013, plaintiff had a meeting with Gabby Russell, the operator of Gables, and Mrs. Wilcox concerning Gables' compliance with CLIA. At that meeting, plaintiff informed Mrs. Wilcox and Ms. Russell about the email from KHEL and Gables' need for a waiver to obtain blood samples via finger sticks. According to plaintiff, Mrs. Wilcox said it was "silly" that Gables would have to pay $150.00 for a waiver. Plaintiff advised Mrs. Wilcox and Ms. Russell that defendants' current practice of obtaining blood samples without a CLIA waiver was illegal. Ms. Russell then asked plaintiff about a lawsuit she had filed in 2008 pursuant to the False Claims Act against a former employer over the same CLIA issue. Plaintiff explained to Ms. Russell and Mrs. Wilcox that she was notifying defendants of their illegal and fraudulent practices regarding CLIA due to her previous lawsuit filed pursuant to the FCA.

On April 2, 2013, plaintiff sent another email to KHEL informing the agency that she had advised Mrs. Wilcox and Ms. Russell that Gables needed a CLIA waiver to obtain blood samples through finger sticks for testing via glucometer and that Mrs. Wilcox had stated that she thought it was unnecessary to pay $150.00 for a CLIA waiver "since the testing was so simple." Two days later, on April 4, 2013, plaintiff was conducting her rounds and was again accompanied by Dr. Williams. Plaintiff informed Dr. Williams that Gables did not have a CLIA waiver to obtain blood samples by use of finger sticks to be tested via glucometer. Dr. Williams then asked Mrs. Wilcox about the CLIA waiver, who said she was "taking care of it" and she confirmed that Gables needed to obtain the waiver. On April 5, 2013, defendant Norm Wilcox and Ms. Russell approached plaintiff in her office and advised her that her employment was terminated effective immediately. Mr. Wilcox told plaintiff that she was terminated because defendants were "going in a different direction." Prior to her termination, plaintiff had not received any discipline regarding her performance.

III. FCA Whistleblower Retaliation Claim

In Count I of her Amended Complaint, plaintiff contends that defendants terminated her employment in violation of 31 U.S.C. 3730(h), which provides protections to "whistleblowers" under the False Claims Act (FCA). The FCA imposes liability on any person who "knowingly presents, or causes to be presented, to an officer or employee of the United States Government... a false or fraudulent claim for payment or approval." 31 U.S.C. § 3729(a)(1). The FCA authorizes individuals to bring qui tam suits on behalf of the government and keep a percentage of any monies recovered. McBride v. Peak Wellness Center, Inc., 688 F.3d 698, 703 (10th Cir. 2012). Because "employees will often be in the best position to report frauds perpetrated by their employers, the FCA includes whistleblower' provisions protecting employees who do so from retaliation." Id. Whistleblowers are entitled to reinstatement, double back pay, and litigation costs and attorneys' fees. Id. at 703-04 (citing 31 U.S.C. § 3730(h)(2)).

To qualify for whistleblower protection, an employee "need not actually file a qui tam action, " but the activity "prompting plaintiff's discharge must have been taken in furtherance of' an FCA enforcement action." Id. at 704 (quoting United States ex rel. Ramseyer v. Centry Healthcare Corp., 90 F.3d 1514, 1522 (10th Cir. 1996)). In addition, a plaintiff claiming retaliatory discharge under the FCA "has the burden of pleading facts which would demonstrate that defendants had been put on notice that plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government." Id. Notice may be provided in a number of ways, including, by way of example, informing the employer of "illegal activities" that would constitute fraud on the United States; warning the employer of regulatory noncompliance and false reporting of information to a government agency; or explicitly informing the employer of an FCA violation. Id. (citations omitted).

In their motion to dismiss, defendants contend that plaintiff's first amended complaint fails to set forth allegations from which the court could reasonably infer that she engaged in activity "in furtherance of an FCA enforcement action" or that defendants had been put on notice that plaintiff was either taking action in furtherance of a private qui tam action or assisting in an FCA action brought by the government. Defendants also contend that dismissal is appropriate because plaintiff has not alleged any facts "other than the timing of her dismissal" plausibly suggesting that defendants' termination of plaintiff's employment was motivated by her reporting activities. The court addresses each of these arguments in turn.

A. Protected Activity

According to defendants, plaintiff has not alleged facts that could plausibly support a conclusion that she engaged in protected activity under the FCA. Defendants begin by asserting that plaintiff did not engage in any conduct in furtherance of an FCA action because the monitoring and reporting activities described in her complaint were activities plaintiff was required to perform as part of her job as Director of Nursing. While discovery may ultimately reveal that plaintiff's job responsibilities required her to investigate such matters, her complaint certainly does not indicate that she had responsibilities for investigating fraud or monitoring compliance with Medicaid requirements. She alleges only that she was responsible "for the oversight of all the certified medication aides and certified nursing ...


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