Brown v. Howard University Hospital ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
SHARONDA BROWN,
Plaintiff,
v. Civil Action No. 19-3340 (JEB)
HOWARD UNIV. HOSPITAL, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiff Sharonda Brown brought this action to contest her termination from the position
of Director of Nursing for Emergency and Trauma Services at Howard University Hospital. She
has sued both Howard and Paladin Healthcare Management, LLC, which the hospital hired to
manage the Emergency Department. Asserting that she was fired for raising questions about
allegedly fraudulent and improper billing practices, Brown’s First Amended Complaint set forth
three counts: two for retaliation in violation of both the federal and District of Columbia False
Claims Acts and a third for wrongful termination in violation of public policy. For procedural
reasons that the Court describes in detail below, the only issue now ripe for decision is whether
the third count can survive a motion to dismiss. Because Defendants correctly point out that the
public-policy exception to the employment-at-will doctrine does not apply where that policy is
already protected by another statute — here, both FCAs — the Court agrees that this third claim
cannot stand.
I. Background
Given that the legal issue teed up here is fairly narrow, the Court provides an abbreviated
factual summary. According to Plaintiff’s First Amended Complaint, which must be presumed
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true for purposes of this Motion, Howard is a non-profit hospital located in our city, and it
contracted with Paladin to manage its Emergency Department. See ECF No. 5 (Am. Compl.),
¶¶ 2, 3. The hospital’s Chief Nursing Officer, Gloria Gammage, was a Paladin employee who
supervised Brown and had the power to fire her. Id., ¶¶ 11, 12, 20. Brown’s employment began
in September 2015, and in March 2016, she informed Gammage that the hospital was
improperly billing Medicare for expenses related to certain Emergency Department patients.
Id., ¶¶ 16, 26–28. She also explained this to a D.C. Department of Health official. Id., ¶¶ 30–
33. In addition, Plaintiff believed that financial fraud was occurring in relation to other hospital
services, which she also brought to Gammage’s attention. Id., ¶¶ 54, 63, 66. After a patient
death threatened to expose these allegedly improper practices, Gammage fired Brown in
November 2016. Id., ¶¶ 94, 97–99.
In her First Amended Complaint, Plaintiff articulated the following counts: I) Retaliation
in violation of the District of Columbia False Claims Act, D.C. Code § 2-381.02; II) Retaliation
in violation of the federal False Claims Act, 31 U.S.C. § 3730 (h)(1); III) Retaliatory Wrongful
Discharge in Violation of Public Policy. Paladin moved to dismiss only the third count,
contending that Brown could not satisfy the public-policy exception to the at-will employment
doctrine. See ECF No. 24 (Paladin MTD). Howard separately moved to dismiss the third count
on that ground, but also contended that the first two counts had not sufficiently established its
involvement in the termination. See ECF No. 23 (Howard MTD). Plaintiff then moved to
amend her Complaint a second time, seeking to bolster Howard’s role with additional factual
allegations. See ECF No. 30 (Pl. Motion to Amend). Howard thereupon withdrew its challenge
to amended Counts I–II, but it and Paladin both oppose amendment to the extent the new
Complaint retains Count III essentially unchanged. See ECF Nos. 33 (Paladin MTD Reply); 35
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(Howard Opp. to Motion to Amend). As a result, while the Court will permit amendment of the
first two counts, it must determine whether Count III of the proposed Second Amended
Complaint can proceed.
II. Legal Standard
A plaintiff may amend her complaint once as a matter of course within 21 days of serving
it or within 21 days of the filing of a responsive pleading. See Fed. R. Civ. P. 15(a)(1).
Otherwise, she must seek consent from the defendant or leave from the court. The latter “should
[be] freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether
to grant leave to file an amended complaint, courts may consider “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). In this
Circuit, “it is an abuse of discretion to deny leave to amend unless there is sufficient reason.”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996). Under Rule 15, furthermore, “the
non-movant generally carries the burden in persuading the court to deny leave to amend.”
Nwachukwu v. Karl, 222 F.R.D. 208, 211 (D.D.C. 2004).
It is clear, however, that amendment should not be permitted if it would be futile. In
other words, if the amendment is facially infirm, courts need not grant leave. In re Interbank
Funding Corp. Sec. Litig., 629 F.3d 213, 218 (D.C. Cir. 2010). “[A] district court may properly
deny a motion to amend if the amended pleading would not survive a motion to dismiss.” Id.(citing Foman, 371 U.S. at 182, for proposition that “‘futility of amendment’ is permissible
justification for denying Rule 15(a) motion”); James Madison Ltd. v. Ludwig, 82 F.3d 1085,
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1099 (D.C. Cir. 1996) (“Courts may deny a motion to amend a complaint as futile . . . if the
proposed claim would not survive a motion to dismiss.”).
Under the motion-to-dismiss standard, the Court must “treat the complaint’s factual
allegations as true . . . and must grant plaintiff ‘the benefit of all inferences that can be derived
from the facts alleged.’” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir.
2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979)) (citation omitted);
see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1250 (D.C. Cir. 2005). The
pleading rules are “not meant to impose a great burden upon a plaintiff,” Dura Pharms., Inc. v.
Broudo, 544 U.S. 336, 347 (2005) (citation omitted), and she must thus be given every favorable
inference that may be drawn from the allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 238
(1974).
Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6)
motion, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plaintiff must
put forth “factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Court need not accept as true “a legal
conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in
the Complaint. Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain,
478 U.S. 265, 286 (1986) (internal quotation marks omitted)). For a plaintiff to survive a
12(b)(6) motion even if “‘recovery is very remote and unlikely,’” moreover, the facts alleged in
the complaint “must be enough to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555–56 (citing Rhodes, 416 U.S. at 236).
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III. Analysis
Plaintiff’s claim here is that Gammage improperly sacked her. When an employee’s
contract does not provide for a specific term of service, she is typically an at-will employee,
which means that she may be fired at any point. Adams v. George W. Cochran & Co., Inc., 597
A.2d 28, 30 (D.C. 1991) (general law “in the District of Columbia [is] that an employer may
discharge an at-will employee at any time and for any reason, or for no reason at all”) (citations
omitted). Although Brown never specifically concedes her at-will status, her third count for
wrongful discharge (as opposed to breach of contract) assumes as much. See Am. Compl.,
¶ 142. In any event, such status is not necessarily fatal to a wrongful-termination suit, as this
Court explained in a similar case:
In Adams, the D.C. Court of Appeals held that “there is a very
narrow exception to the at-will doctrine under which a discharged
at-will employee may sue his or her former employer for wrongful
discharge when the sole reason for the discharge is the employee's
refusal to violate the law, as expressed in a statute or municipal
regulation.” Id. at 34.
The DCCA then expanded this exception six years later in its en
banc decision in Carl v. Children’s Hospital, 702 A.2d 159 (D.C.
1997). The plaintiff in Carl was a nurse who was terminated after
she testified in the City Council against the hospital’s interests and
also as an expert witness for plaintiffs in malpractice cases. Id. at
160. The majority of the DCCA — as constituted by those joining
Judge Terry’s concurrence and Judge Steadman’s dissent — held
that Adams’s exception was not the only possible one, but that “the
recognition of any such [future public-policy] exception must be
firmly anchored either in the Constitution or in a statute or regulation
which clearly reflects the particular ‘public policy’ being relied
upon.” Id. at 162 (Terry, J., concurring). In addition, “[t]his court
should consider seriously only those arguments that reflect a clear
mandate of public policy — i.e., those that make a clear showing,
based on some identifiable policy that has been ‘officially declared’
in a statute or municipal regulation, or in the Constitution, that a new
exception is needed. Furthermore, there must be a close fit between
the policy thus declared and the conduct at issue in the allegedly
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wrongful termination.” Id. at 164 (Terry, J., concurring) (footnotes
omitted).
Robinson v. Securitas Servs., Inc., 819 F. Supp. 2d 18, 20 (D.D.C. 2011).
Brown here appears to fit under the public-policy umbrella inasmuch as she alleges that
her termination constituted retaliation for raising issues about fraudulent and improper billing
practices. Yet, as Defendants note, a plaintiff asserting wrongful discharge must not only plead a
“clear mandate of public policy,” but must also show that this policy is not already protected by
another statute. See LeFande v. Dist. of Columbia, 864 F. Supp. 2d 44, 50 (D.D.C. 2012) (“Even
where there is a showing of a clearly identifiable policy, the D.C. Court of Appeals has refused
to find new exceptions to the doctrine of at-will employment where the legislature has already
‘creat[ed] a specific, statutory cause of action to enforce’ the public policy at issue.”) (quoting
Carter v. Dist. of Columbia, 980 A.2d 1217, 1225–26 (D.C. 2009)); see also Kassem v.
Washington Hosp. Ctr., 513 F.3d 251, 254 (D.C. Cir. 2008) (“[T]he D.C. Court of Appeals held
the exception unavailable ‘where the very statute creating the relied-upon public policy already
contains a specific and significant remedy for the party aggrieved by its violation’”) (quoting
Nolting v. Nat’l Capital Grp., Inc., 621 A.2d 1387, 1390 (D.C. 1993)).
Courts in this district have applied this principle in a variety of circumstances. E.g.,
LeFande, 864 F. Supp. 2d at 50–51 (First Amendment rights were already protected under 42
U.S.C. § 1983); Hicks v. Assoc. of Am. Med. Colls., 503 F. Supp. 2d 48, 55 (D.D.C. 2007)
(remedies under Fair Labor Standards Act and D.C. Minimum Wage Act preclude application of
wrongful discharge in violation of public policy); Carter, 980 A.2d at 1225–26 (rejecting public-
policy exception where District’s Whistleblower Protection Act already provides an employee
with cause of action).
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The policy that Plaintiff seeks to uphold here is protection for those who expose
fraudulent billing and false claims against the Government. Defendants correctly point out,
however, that both the federal and local FCA statutes contain a remedy for such retaliation;
indeed, Plaintiff herself has invoked those in Counts I and II of her Complaint. As other courts
in this district have held in false-claims cases, this means she is out of luck in trying to tack on a
redundant count. See U.S. ex rel. Hood v. Satory Glob., Inc., 946 F. Supp. 2d 69, 89 (D.D.C.
2013) (dismissing wrongful-discharge count where plaintiff had FCA remedy); Elemary v.
Philipp Holzmann, A.G., 533 F. Supp. 2d 116, 136 (D.D.C. 2008) (“Because [a suit under 31
U.S.C. § 3730(h)] lies open to her, Elemary may not invoke the public policy exception to the at-
will employment doctrine.”) (citation omitted).
Brown offers little in the way of rebuttal, relying principally on a Virginia case that does
not even address D.C.’s public-policy exception. See ECF No. 28 (Pl. Opp. to MTD) at 28.
Indeed, she concedes that “the FCA contains its own statutory remedy, such that the FCA alone
could not serve as the underlying basis for a public policy discharge claim.” Id. at 30. Yet she
follows that with a non sequitur: “Brown’s claims are based not in a statute with whistleblower
remedies, but in D.C. and federal statutes that contain no whistleblower provisions or remedies.”
Id. The Court is unclear what argument Plaintiff is making here; whether the two FCAs do or do
not contain whistleblower provisions is irrelevant since they do provide for retaliation claims,
which is precisely what Brown asserts here.
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IV. Conclusion
The Court, accordingly, will permit Plaintiff to file a Second Amended Complaint with
Counts I and II as amended only. An accompanying Order will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 29, 2021
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