JoAnn Buytendorp v. Extendicare Health ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-1717/1725
___________
JoAnn Buytendorp, *
*
Appellant/Cross-Appellee, *
* Appeal from the United States
v. * District Court for the District of
* Minnesota.
Extendicare Health Services, Inc., *
*
Appellee/Cross-Appellant. *
___________
Submitted: November 15, 2006
Filed: August 17, 2007
___________
Before LOKEN, Chief Judge, LAY1 and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
JoAnn Buytendorp appeals the district court’s2 grant of summary judgment in
favor of her employer, Extendicare Health Services, Inc. (“Extendicare”), in this
diversity action under the Minnesota Whistleblower’s Act, Minn. Stat. §§ 181.931 to
181.935 (“the Act”). Extendicare cross-appeals the district court’s denial of a motion
1
The Honorable Donald P. Lay assumed permanent disability retirement status
on January 3, 2007, and died on April 29, 2007. This opinion is being filed by the
remaining judges of the panel pursuant to 8th Cir. R. 47E.
2
The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
requesting permission to amend a scheduling order to permit a motion for sanctions
against Buytendorp’s counsel. We affirm.
I. Background
A. The Parties and the Allegedly Illegal Practices
Extendicare is a for-profit healthcare company that operates long-term care,
skilled nursing, assisted living, and shorter-term rehabilitation facilities in Minnesota
and other states. It is a Delaware corporation with its principal place of business in
Wisconsin. Extendicare receives reimbursement payments from various payor
sources, including Medicare, Medicaid, and private sources. The reimbursement rate
Medicare pays to Extendicare is substantially higher than the rates paid to Extendicare
by the other sources.
Buytendorp began working for Extendicare upon graduation from college in
1989. Between 1989 and mid-1996, she completed additional course work, obtained
an administrator’s license, and held a series of positions of increasing authority at
Extendicare. On July 1, 1996, she became the temporary administrator of an
Extendicare facility, Trevilla of New Brighton. In December 1996, Extendicare made
Buytendorp the permanent administrator at Trevilla. She worked in this capacity until
2004, when Extendicare terminated her employment.
Buytendorp alleges that she received no adverse performance reviews and was
denied no raises nor opportunities for advancement prior to 2003. She alleges
Extendicare terminated her employment because she complained about, and refused
to participate in, practices she believed to be illegal.3 The objectionable practices
3
Although Buytendorp also alleges she was denied advancement opportunities
in 2003 and 2004, she fails to present evidence sufficient to create a triable question
of fact regarding Extendicare’s hiring practices and the filling of open positions during
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related generally to discrimination in the admission and treatment of patients based
on payor source. She alleges Extendicare held rooms open for higher-paying
Medicare patients, held Medicare patients longer than necessary, moved non-Medicare
patients to less desirable rooms to make desirable rooms available for Medicare
patients, and cut staffing to levels that were adverse to the patients’ interests, all
purportedly in violation of federal law, state law, and Medicare guidelines.
Buytendorp states that there was some emphasis within Extendicare to
maximize the admission and retention of Medicare patients dating back to 1996 but
that she was neither instructed nor pressured to participate in practices she believed
to be illegal until the 2003-04 time frame. According to Buytendorp, the atmosphere
changed in late 2002 when Extendicare hired Laurie Bebo as a vice-president for the
region that included the Trevilla facility. According to Buytendorp, Bebo
aggressively pursued an increase in the number of Medicare patients and aggressively
pursued cost-cutting measures. Under Bebo, Buytendorp states that she and other
employees noticed a strong emphasis on profitability that they believed impeded the
provision of good patient care. Buytendorp describes the work atmosphere under
Bebo as one of pressure to increase the number of Medicare patients by whatever
means possible. Buytendorp also describes a number of specific policies that she
characterizes as designed to maximize the admission and retention of Medicare
patients to the detriment of patients covered by other payor sources. Buytendorp
alleges that these policies, even if not facially illegal, served as a framework that
permitted and concealed payor source discrimination.
Regarding the general atmosphere of pressure, Buytendorp states that Bebo
instituted a target Medicare patient quota for each facility, known as a payor mix or
the relevant window of time. It is not clear which decisionmakers were responsible
for filling positions Buytendorp allegedly desired, nor is it clear that Buytendorp’s
complaints had been communicated to any such decisionmakers. Accordingly, we do
not discuss these allegations further.
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Medicare census. Administrators’ compensation was linked in part to meeting the
quotas for their facilities. Bebo and the area director of clinical reimbursement, Jim
Hendricks, held weekly conference calls with facility administrators and nursing
directors who failed to meet their quotas. Buytendorp states that Hendricks would
belittle and yell at staff who failed to meet a Medicare census.
Regarding specific policies, Buytendorp first identifies a policy she calls the
“two-beds” policy. The Trevilla facility had some rooms in a rehabilitation wing that
contained only two beds per room and that were more spacious than rooms in a
separate long-term care wing that contained three beds per room. The two-bed rooms
also had a greater number of amenities such as cable television. Buytendorp describes
the three-bed rooms as undesirable and hard to market, with the middle beds of the
three-bed rooms being particularly unattractive to potential patients. Buytendorp
states that, in 2003, Bebo directed her to keep beds available in the two-bed rooms for
Medicare patients, even if it meant turning away Medicaid or private source-payor
patients. This policy also required Buytendorp to move non-Medicare patients out of
the desirable rooms and into three-bed rooms if a Medicare patient called to be
admitted. Buytendorp alleges that this practice of discriminating against patients
based on payor source was in violation of Minnesota law.
A second specific policy Buytendorp identifies is the “green light” or “green
flag” admissions policy. In theory, this policy was designed to streamline the
admissions process and make it easier for facilities to deal with hospitals that released
patients to Extendicare. The green flag policy was designed to permit any staff
member to automatically admit new patients who had certain, enumerated diagnoses.
Buytendorp states that, in practice, the green flag policy favored Medicare patients
and changed over time into a policy that prohibited the rejection of Medicare
admittees. Buytendorp claims the policy first changed to require a regional nurse’s
approval before admission could be denied to a prospective Medicare patient,
regardless of the facility’s ability to handle the patient’s needs. Later, even regional
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nurses and facility administrators could not approve such denials, and only Bebo
could approve the rejection of a Medicare patient.
The third policy Buytendorp identifies is the Healthtrac program. In theory, this
was a program for tracking patient progress that was intended to minimize the number
of patients who were prematurely released and subsequently forced, following injury
or relapse, to return for further or different care. Buytendorp alleges that, in practice,
Healthtrac came to be used only with Medicare patients and became one of many tools
Extendicare used to improperly and unnecessarily lengthen the stays of high-paying
Medicare patients. Buytendorp alleges that she was directed to use the Healthtrac
program and to take other measures to convince Medicare patients to extend their
stays beyond any medically necessary length. Buytendorp admitted in her deposition,
however, that she is not a physician nor is she qualified as a physician to determine
what treatment is and is not medically necessary.
B. The Alleged Whistleblowing
Buytendorp states that Bebo announced the two-beds policy during a
conference call “some time in 2003.” Buytendorp immediately believed that the
policy illegally discriminated against patients based on payor source, but she did not
voice her concerns to Bebo out of fear of retaliation. Buytendorp implemented the
policy and believed herself to be acting in violation of the law whenever she had open
beds and turned away prospective patients from non-Medicare payor sources.
Buytendorp claims that within two weeks of Bebo’s announcement of the policy,
Buytendorp “voiced [her] opinion to [Buytendorp’s] direct supervisor, Craig Eddinger
and . . . felt that was sufficient.” Buytendorp claims that she specifically told
Eddinger, “It’s illegal to discriminate against payor sources in the State of Minnesota.
And that we can’t hold beds open for Medicare patients.” Buytendorp did not
complain directly to Bebo, nor did she ask Eddinger to communicate her concerns to
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Bebo. Buytendorp stated that she had hoped Eddinger would pass her complaints
along, but that she was reluctant to talk directly to Bebo out of fear of retaliation.
Buytendorp did not follow up with Eddinger on the two-beds policy because
the Trevilla facility met its Medicare census or quota and “stayed there for quite some
time,” and therefore, Buytendorp did not participate in the conference calls with Bebo
and Hendricks that were designed to address Medicare census shortfalls. In
Buytendorp’s deposition, when counsel asked her about reporting the two-bed policy,
the following exchange took place:
Counsel: Let me ask you, when you say we were at budget, do
you mean Trevilla of New Brighton?
Buytendorp: Correct.
Counsel: Those conference calls continued though with other
facilities?
Buytendorp: I assume so. I didn’t [keep] track of other people’s
census.
Counsel: And so it didn’t concern you that other facilities might
be violating the law?
Buytendorp: I was very happy with the way the facility was running
and I just kept working hard at my own facility, I didn’t
think of others.
Counsel: So since your facility was on budget and you weren’t on
conference call you dropped the issue, is that correct?
Buytendorp: Correct.
Upon further questioning, Buytendorp stated that she met her medicare census
and was not required to go back on conference calls until November 2003, when
Trevilla failed to meet its Medicare census. At that time, she continued to implement
the two-beds policy in an effort to increase the number of Medicare patients at
Trevilla. She described one conference call in particular in which various
administrators were asked what they were doing to meet the Medicare census goals
at their facilities. During the call, Buytendorp explained how she was moving non-
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Medicare patients to the middle beds of the undesirable three-bed rooms and keeping
other beds open for Medicare patients. According to Buytendorp, she was praised by
supervisors when she explained this practice.
Buytendorp made no further statements to Eddinger about her concerns. She
does not know if Eddinger shared her comments with any other persons at
Extendicare, and she presented no evidence to suggest that Eddinger shared her
concerns with other employees or supervisors. Buytendorp states that Eddinger
expressed no dissatisfaction with her performance and gave her “a really good
review.” Buytendorp did not complain directly to Bebo about the objectionable
policy, call the corporate compliance phone line, nor complain to any superiors in
writing or via email. Extendicare submitted an affidavit from Eddinger in which
Eddinger denies Buytendorp’s allegation that she complained to him about the two-
beds policy being illegal. Eddinger moved to a different position at Extendicare
shortly after Buytendorp made her comments to him and left the company entirely in
late 2003.
Also in November 2003, Hendricks came to Trevilla to conduct training on the
Healthtrac system. At that time, Buytendorp spoke privately with Hendricks and told
him she believed it was illegal to treat Medicare patients differently than other patients
and hold patients longer than necessary. Buytendorp stated that Hendricks attended
meetings every month for three months, and each time, she privately expressed to him
her concern over the illegality of the discriminatory practices and patient retention
practices. Throughout this time, Buytendorp continued to implement the
objectionable programs at Trevilla. Extendicare submitted an affidavit from
Hendricks in which Hendricks denies that Buytendorp complained to him about
perceived illegal practices.
In December 2003, Bebo and human resources manager Io Shug met with
Buytendorp and Lisa Boje, the manager of nursing at Trevilla, to address issues
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related to general census numbers and nursing labor costs. Buytendorp does not
allege that this meeting was related to Medicare census numbers or payor source
discrimination. Rather, Bebo and Shug discussed Buytendorp’s and Boje’s failure to
adequately control nursing costs at a budgeted level commensurate with the facility’s
overall census or occupancy. According to Buytendorp, “It was a threatening
meeting, it basically said you need to fix this or you'll be terminated.” Buytendorp
admits that the nursing costs were not adequately under control at Trevilla at the time
of this meeting, and she does not suggest that the meeting to address this issue was
inappropriate. Buytendorp alleges only that, based on her characterization of past
practices at Extendicare, this area of concern would not typically have been grounds
for termination.
In January 2004, Buytendorp attended a meeting with Wally Lavonavich, the
area comptroller in charge of finances and budgets for Extendicare in Minnesota and
Wisconsin. Buytendorp talked to Lavonovich one-on-one and said, “Wally, I believe
we are, or it is illegal that we are practicing this admissions policy.” She also told him
“it was illegal that we’re holding patients longer than is medically necessary.”
According to Buytendorp, Lavonavich responded by laughing and saying, “We’re a
big company, I’m sure this would have been brought up by now if that was true.”
Extendicare submitted an affidavit from Lavonavich in which Lavonovich denies that
Buytendorp complained to him about any perceived illegal practices.
Buytendorp states that Sue Cullen replaced Eddinger as her immediate
supervisor at the end of February 2004. Cullen was from Canada, and Buytendorp
claims to have been concerned that this new supervisor might not be familiar with
applicable U.S. and Minnesota laws and regulations. During an introductory meeting
that took place “probably in the first couple of weeks in March,” Buytendorp took the
opportunity to tell Cullen that she believed the two-beds policy comprised illegal
discrimination based on payor source. Buytendorp also told Cullen that the separate
practice of “increasing the length of stay on Medicare patients and keeping them in
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the facility when it was not medically necessary was also illegal and breaking the law
on federal guidelines for Medicare.” Regarding the Healthtrac program and other
efforts to keep Medicare patients in-house for as long as possible, Buytendorp admits
that she participated in carrying out the policies. Extendicare submitted an affidavit
from Cullen in which Cullen denies that Buytendorp ever complained to her about any
perceived illegal practices.
During Buytendorp’s deposition in this matter, counsel for Extendicare
questioned her about her interactions with Cullen and Hendricks and about carrying
out the policies at Trevilla that Buytendorp found objectionable. Buytendorp
consistently characterized the policies as directives she was instructed to follow. The
following exchange took place:
Counsel: Now, at some point did you stop your facility, stop
violating these two laws that you were telling me about?
Buytendorp: No, we did, we followed the directive.
Counsel: That’s what I’m trying to get at, you followed the
directive all the way up to and including the time of your
termination?
Buytendorp: Correct.
On April 12, 2004, during a brainstorming meeting that included Buytendorp,
Hendricks, Cullen, and administrators from other facilities, those in attendance were
expected to suggest methods by which Extendicare could obtain and retain Medicare
patients. Buytendorp alleges that she sat conspicuously mute at the meeting and that
she, again, pulled Hendricks aside and voiced her concern to him that it was illegal to
extend the stays of Medicare patients. Following the meeting Hendricks expressed
dissatisfaction with Buytendorp’s performance and met with Cullen behind closed
doors. After the closed-door meeting, Cullen met with Buytendorp and “was visibly
upset and said she was very disappointed in [Buytendorp].” On April 14, 2004,
Cullen placed Buytendorp on a performance improvement plan with one month to
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meet stated goals. The performance improvement plan or probation plan listed areas
of concern that Buytendorp concedes were legitimate areas of concern where she was
underperforming. For example, in relation to the control of labor costs and a failure
to meet overall facility census goals, Buytendorp stated in her deposition, “I was not
at budget for these areas, correct. . . . Our census was low and I had not adjusted the
appropriate nursing hours.” Buytendorp identifies other concerns as being unfounded,
however, and as relating to the implementation of illegal policies. For example,
Buytendorp stated, “The area where it said you had to increase your length of stay and
attend the Medicare meetings and be an active part of it, that I felt was being
fraudulent and illegal and I wasn’t going to do that.”
C. The Termination
Buytendorp did not meet the goals set out in the performance improvement
plan. Cullen stated in an affidavit that she made the decision to terminate Buytendorp
and intended to meet with Buytendorp on May 17 to terminate her employment. That
meeting was not scheduled, however, because Cullen learned that Minnesota state
investigators were conducting an audit of the Trevilla facility. This audit resulted in
the discovery of twenty-nine safety violations of varying levels of severity, and Cullen
received an oral report of these violations on Friday, May 21, 2004. Cullen set a
meeting for the morning of Saturday, May 22.
Cullen stated in an affidavit that when she arrived on Saturday morning,
Buytendorp had already packed personal belongings in a box. Cullen claims to have
told Buytendorp that she was being terminated because she failed to meet the goals
in the performance improvement plan and because of the number and severity of the
safety violations identified by the state. Buytendorp alleges that she had not packed
her personal belongings before Cullen arrived, but rather, was getting organized for
the meeting with Cullen. Buytendorp alleges that Cullen did not offer reasons for the
termination other than stating that Buytendorp was not “administrator material.”
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Buytendorp does not contest the fact that the state conducted an inspection that
revealed safety violations. Instead, Buytendorp alleges that the state authorities were
overly aggressive and overly critical and that they broke with past practice by listing
certain violations individually whereas past reports had grouped violations together.
Buytendorp argues that this resulted in an inflated number of violations in the May
2004 inspection report and an amplification of the appearance of risk to patients.
After her termination, Buytendorp brought this retaliation action in state court
and Extendicare removed the case to federal court. Buytendorp alleged that
Extendicare denied her opportunities for advancement and ultimately fired her in
retaliation for whistleblowing and for refusing to participate in allegedly illegal
activity. Extendicare moved for summary judgment on Buytendorp’s claim under the
Act and on a separate state law claim for negligent supervision. The district court
granted summary judgment in favor of Extendicare on both claims. The court found
that Minnesota’s own courts had interpreted the Act to require an official or formal
report of wrongdoing before an employee could enjoy protection under the Act and
that Buytendorp’s repeated comments to her superiors at Extendicare did not qualify
as official or formal reports. The district court noted the availability of a mechanism
to make such reports (a corporate compliance hotline) and Buytendorp’s failure to
utilize that mechanism. The district court also noted that Buytendorp failed to make
any written complaints, email any complaints, or make notes regarding the alleged
illegalities or complaints. Buytendorp appeals the grant of summary judgment on her
whistleblower claim but not her claim for negligent supervision.
In the court below, a dispute arose in which counsel for Extendicare accused
counsel for Buytendorp of improperly attempting to influence a witness and making
misrepresentations to the court. Counsel for Buytendorp accused counsel for
Extendicare of improperly withholding documents that had been requested during
discovery. Extendicare eventually moved to amend a scheduling order to permit the
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filing of a motion for sanctions against Buytendorp’s counsel. A magistrate judge4
denied the motion and Extendicare appealed to the district court. The district court
affirmed the magistrate judge’s denial of the motion, and Extendicare appeals to our
court.
II. Discussion
The Act prohibits adverse actions against employees who make good faith
reports to their employers about actual or suspected illegal conduct. Minn. Stat.
§ 181.932(a). The Act also prohibits adverse actions against employees who make
good faith reports regarding violations of health care standards that “potentially
place[] the public at risk of harm.” Minn. Stat. § 181.932(d). Finally, the Act
protects employees who refuse to participate in practices when there are objective
reasons to believe the practices are illegal. Minn. Stat. § 181.932(c). Buytendorp
asserted below and maintains on appeal that she was terminated for making good faith
reports and for refusing to participate in illegal practices. She admitted, however, that
she implemented the identified practices through the time of her termination. As such,
there was no refusal to participate. See Gundacker v. Unisys Corp., 151 F.3d 842,
847-48 (8th Cir. 1998) (upholding a grant of summary judgment under subsection (c)
of the Act where an employee failed to prove a refusal to participate). To the extent
Buytendorp bases her refusal-to-participate claim on her silence at the April 2004
meeting, we find her arguments to be without merit. Sitting quietly at a planning
session while actually implementing objectionable policies does not comprise a
refusal to participate. Accordingly, we focus our analysis on her claim under
subsections (a) and (d) of the Act.
4
The Honorable Franklin L. Noel, United States Magistrate Judge for the
District of Minnesota.
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We analyze Minnesota whisteblower claims using the procedural framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Hitchcock
v. Fedex Ground Package Sys., Inc., 442 F.3d 1104, 1106 (8th Cir. 2006) (applying
the burden-shifting framework of McDonnell Douglas to claims under Minn. Stat.
§181.932). Under McDonnell-Douglas, the initial burden is on the plaintiff to
establish a prima facie case. Rothmeier v. Inv. Advisers, Inc., 556 N.W.2d 590, 592
(Minn. App. 1996). A prima facie case consists of (1) conduct by the employee that
is protected by the Act, (2) an adverse employment action directed at the employee,
and (3) a causal connection between the protected conduct and the adverse action. Id.If the plaintiff establishes a prima facie case, a burden shifts to the employer to
articulate a legitimate reason for the adverse action. Id. at 592-93. The ultimate
burden of proof then rests with the plaintiff to prove that the proffered reason is
merely a pretext and that retaliatory animus motivated the adverse action. Id. at 593.
Protected conduct under subsection (a) of the Act is the making of a “good
faith” report. Minn. Stat. § 181.932(a). To be a protected report, a complaint must
be formal or presented “in an essentially official manner.” Janklow v. Minn. Bd. of
Exam’rs for Nursing Home Adm’rs, 536 N.W.2d 20, 23 (Minn. App. 1995) (defining
a good faith report as “conduct [that] amounts to relating or presenting concerns in an
essentially official manner”). In addition, “to constitute whistle-blowing . . . a report
[must be] made for the purpose of exposing an illegality and [must not be] a vehicle,
identified after the fact, to support a belated whistle-blowing claim.” Obst v.
Microtron, Inc., 614 N.W.2d 196, 202 (Minn. 2000). In other words, “[i]n
determining whether a report of a violation or suspected violation of the law is made
in good faith, we look beyond the content of the report and consider the employee’s
purpose in making the report.” Gee v. Minn. State Colls. and Univs., 700 N.W.2d
548, 555 (Minn. App. 2005). “Whether a plaintiff made a report in ‘good faith’ is a
question of fact. Nevertheless, [the] court may determine as a matter of law that
certain conduct does not constitute a ‘report.’” Rothmeier v. Inv. Advisers, Inc., 556
N.W.2d 590, 593 (Minn. App. 1996) (internal citations omitted).
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Extendicare argues that application of the formality or “essentially official
manner” requirement is a simple matter: because Buytendorp failed to make or
memorialize her complaints in writing or present them electronically or through the
company’s corporate compliance hotline, she cannot meet the formality requirement.
We do not agree with Extendicare’s assertion that the contours of the formality
requirement are this simple and well-defined. Although Minnesota’s courts have
interpreted the statute as containing a formality requirement, neither the statute nor the
caselaw interpreting the statute contains an express requirement that reports be in
writing. Similarly we find no Minnesota cases standing for the proposition that an
employer may dictate the sole method for communicating complaints about illegal
conduct. The rationale for a formality requirement, like the rationale for a good faith
requirement, is clear: to prevent after-the-fact claims of retaliation based on a dearth
of evidence and unsubstantiated allegations. See Obst, 614 N.W.2d at 202. The
contours of the formality requirement, however, remain cloudy.
Assuming that Buytendorp satisfied the formality requirement, it is not clear
that her repeated statements were made in a good faith effort to expose an illegality.
Arguably, “[h]er reports merely expressed her dissatisfaction with [the employer’s]
conduct and policy, and there is no evidence in the record to suggest that her purpose
in reporting was to expose an illegality.” Hitchcock, 442 F.3d at 1106; see Fjelsta v.
Zogg Dermatology, 488 F.3d 804, 808-09 (8th Cir. 2007) (affirming a grant of
summary judgment under the Act where an employee’s claimed report was not made
for the purpose of exposing an illegality). Here, Buytendorp readily admits that she
refrained from complaining to Bebo out of fear of retaliation. In general, we believe
that whistleblowers are employees who make good faith reports in spite of the risk of
retaliation, not those who avoid such risk.
Nevertheless, we need not decide this case based on the subtleties of
Minnesota’s good faith reporting requirement and the difficult question of whether
Buytendorp’s complaints and subjective motivations qualify her as a whistleblower
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under the Act. Rather, we may assume for the purpose of our analysis that
Buytendorp’s repeated statements to multiple superiors satisfied both the good faith
and formality requirements discussed in Minnesota’s cases. Buytendorp’s case fails,
instead, because Extendicare proffered legitimate reasons for Buytendorp’s
termination—a failure to control labor costs, maintain facility census, and meet state
safety standards—and Buytendorp presented insufficient evidence to create a jury
question as to whether these proffered reasons were merely pretexts.
In describing the McDonnell Douglas burden-shifting framework, we have
stated:
[T[he actual evidentiary burden that a plaintiff must meet at the prima
facie stage [is] “minimal.” Where the evidence used to establish a prima
facie case meets this minimal burden but is not strong, that evidence,
standing alone, may be insufficient to sustain the plaintiff’s case at the
final stage of the burden-shifting analysis. Conversely, where the
evidence of causation for purposes of establishing a prima facie case is
quite strong, it may be sufficient, standing alone, to prove a defendant’s
liability without resort to further evidence.
Stewart v. Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007) (applying
the burden-shifting framework in the context of a statutory disability discrimination
claim) (internal citations omitted). Here, Buytendorp’s prima facie case is not strong,
and she does not challenge the veracity of Extendicare’s assertions regarding her
census, her prior failure to control labor costs, or her receipt of a poor review from the
state. Rather, she alleges these issues were not the true motivation for Extendicare’s
adverse action. Against this backdrop, Buytendorp may not rely solely upon her
prima facie case. Rather, she must present evidence of pretext that is sufficient to
create a triable question of fact when “viewed in light of the employer’s justification.”
Logan v. Liberty Healthcare Corp., 416 F.3d 877, 881 (8th Cir. 2005) (“An
employee’s attempt to prove pretext requires more substantial evidence than it takes
to make a prima facie case because unlike evidence establishing a prima facie case,
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evidence of pretext and retaliation is viewed in light of the employer’s justification.”)
(quotations and alterations omitted).
Buytendorp primarily argues that temporal proximity between her termination
and the April 2004 meeting supports an inference of retaliatory animus. “An
inference of a causal connection between a charge of discrimination and [an adverse
employment action] can be drawn from the timing of the two events, but in general
more than a temporal connection is required to present a genuine factual issue on
retaliation.” Arraleh v. County of Ramsey, 461 F.3d 967, 977 (8th Cir. 2006) (internal
citations omitted, alteration in original). Here, two of the stated rationales for the
termination were Buytendorp’s failures to maintain facility census and control labor
costs. These were performance issues that Bebo raised in the December 2003 meeting
where Buytendorp admits Bebo threatened termination. Buytendorp has presented no
evidence suggesting Bebo was aware of her complaints, and Buytendorp admits that
she specifically avoided making complaints to Bebo. Cullen renewed this
performance concern with the performance improvement plan in April 2004. Given
these undisputed facts, it would not be reasonable to characterize this proffered
rationale as a last-minute, negative response to protected conduct. Cf. Turner v.
Gonzales, 421 F.3d 688, 697 (8th Cir. 2005) (holding that an inference of pretext was
permitted where a decisionmaker generated a negative, unscheduled performance
review two months after a favorable, regularly scheduled review and five days after
receiving notice of the employee’s protected conduct). Further, Cullen met with and
terminated Buytendorp the day after Cullen learned of the state inspection which
exposed a large number of safety violations. Given these facts, temporal proximity,
if anything, lends support to Extendicare’s position rather than Buytendorp’s.
Buytendorp also argues that because Cullen admits to having made the decision
to terminate her prior to the state inspection, and because Extendicare now points to
the safety violations as a rationale for her termination, Extendicare is waffling and
appears to be offering post hoc, pretextual rationales for her termination. See Kobrin
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v. Univ. of Minn., 34 F.3d 698, 703 (8th Cir.1994) ( “Substantial changes over time
in the employer’s proffered reason for its employment decision support a finding of
pretext.”). As further support for this argument, Buytendorp points to her own
assertion that Cullen failed to offer any explanation on the morning of the termination,
other than saying Buytendorp was not “administrator material.” For summary
judgment purposes, we must ignore Cullen’s contrary assertion that Buytendorp had
packed her personal belongings in a box prior to termination and that Cullen explained
the proffered reasons to Buytendorp at termination.
We need not ignore undisputed facts, however, nor must we recognize
unreasonable inferences. We do not believe reasonable jurors could infer pretext from
these alleged inconsistencies. Buytendorp argues neither that the inspection results
were a fabrication nor that Extendicare was responsible for the state inspectors’
actions. Moreover, Cullen’s statement as described by Buytendorp is fully consistent
with Extendicare’s proffered rationales, albeit less specific. Here, an additional,
uncontested, legitimate reason for termination arose between the time that Extendicare
made the decision to terminate and the time the Extendicare actually terminated
Buytendorp. See Freeman v. Ace Tel. Ass’n, 467 F.3d 695, 698 (8th Cir. 2006). On
these facts, reference in subsequent litigation to the additional rationale does not
permit an inference of pretext.
Finally, Buytendorp argues that the state’s report was infirm and that
Extendicare’s treatment of other administrators proves that Extendicare singled her
out for retaliation. We fail to appreciate how the state’s election to conduct an
aggressive inspection relates to Extendicare’s motives. Also, as to the treatment of
other administrators, there is not sufficient evidence for a jury to conclude any such
administrator was so similarly situated that differential treatment could support an
inference of retaliatory intent.
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Buytendorp may well have presented evidence sufficient to create a question
of fact as to whether Extendicare conducted its business in an objectionable manner.
That is not the question that matters for the purpose of the present retaliation claims.
See Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 781 (8th Cir.1995) (holding
the federal courts do not “sit as super-personnel departments” that provide general
oversight and re-examine business decisions). The relevant question is whether a
reasonable jury could find that Extendicare’s proffered reason for the termination was
a mere pretext to mask retaliatory animus. Summary judgment was appropriate
because Buytendorp failed to present sufficient evidence to submit this question to a
jury.
Regarding Extendicare’s cross-appeal, we have carefully reviewed the record
and find no abuse of discretion in the district court’s ruling on the motion to amend
the scheduling order. Miss. River Revival, Inc. v. City of Minneapolis, 319 F.3d
1013, 1018 (8th Cir. 2003) (standard of review).
We affirm the judgment of the district court.
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